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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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.

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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,

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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.

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[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.

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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.

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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

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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

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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).

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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

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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.

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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

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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]

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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

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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

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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)

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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

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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

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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,
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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
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[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
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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.

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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

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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.e., the development of social and communication skills from interaction with nondisabled peers.
See Daniel R.R., 874 F.2d at 1049 (a child may be able to absorb only a minimal amount of the
regular education program, but may benefit enormously from the language models that his
nonhandicapped peers provide); Greer, 950 F.2d at 697 (language and role modeling from
association with nondisabled peers are essential benefits of mainstreaming); Holland, 786 F.
Supp. at 882 (benefits obtained by child with mental retardation as result of placement in a
regular classroom include development of social and communications skills and generally
improved self-esteem). [23] As IDEAs mainstreaming directive makes clear, Congress
understood that a fundamental value of the right to public education for children with disabilities
is the right to associate with nondisabled peers. [24]
Thus, a determination that a child with disabilities might make greater academic progress
in a segregated, special education class may not warrant excluding that child from a regular
classroom environment. We emphasize that the Act does not require states to offer the same
educational experience to a child with disabilities as is generally provided for nondisabled
children. See Rowley, 458 U.S. at 189, 202, 102 S. Ct. at 3042, 3048-49. To the contrary, states
must address the unique needs of a disabled child, recognizing that that child may benefit
differently from education in the regular classroom than other students. See Daniel R.R., 874
F.2d at 1047. In short, the fact that a child with disabilities will learn differently from his or her
education within a regular classroom does not justify exclusion from that environment.
A third factor the court should consider in determining whether a child with disabilities
can be educated satisfactorily in a regular classroom is the possible negative effect the childs
inclusion may have on the education of the other children in the regular classroom. While
inclusion of children with disabilities in regular classrooms may benefit the class as a whole, see
supra n.24, a child with disabilities may be so disruptive in a regular classroom that the
education of other students is significantly impaired. 34 C.F.R. 300.552 comment (citing 34
C.F.R. part 104 Appendix, Para. 24); see Greer, 950 F.2d at 697; Daniel R.R., 874 F.2d at
1048-49. Moreover, if a child is causing excessive disruption of the class, the child may not be
benefiting educationally in that environment. Accordingly, if the child has behavioral problems,
the court should consider the degree to which these problems may disrupt the class. In addition,
the court should consider whether the childs disabilities will demand so much of the teachers
attention that the teacher will be required to ignore the other students. See Daniel R.R., 874 F.2d
at 1049.
We emphasize, however, that in considering the possible negative effect of the childs
presence on the other students, the court must keep in mind the schools obligation under the Act
to provide supplementary aids and services to accommodate the childs disabilities. See Greer,
950 F.2d at 697. An adequate individualized program with such aids and services may prevent

231

disruption that would otherwise occur. See id. With respect to the concerns of nondisabled
children in the regular classroom, we note that the comment to 34 C.F.R. 300.552 (citing 34
C.F.R. part 104 Appendix, Para. 24) reads: [I]t should be stressed that, where a handicapped
child is so disruptive in a regular classroom that the education of other students is significantly
impaired, the needs of the handicapped child cannot be met in that environment. Therefore,
regular placements would not be appropriate to his or her needs . . . . On the other hand, a
handicapped child who merely requires more teacher attention than most other children is not
likely to be so disruptive as to significantly impair the education of other children. Greer, 950
F.2d at 697.
In sum, in determining whether a child with disabilities can be educated satisfactorily in a
regular class with supplemental aids and services (the first prong of the two-part mainstreaming
test we adopt today), the court should consider several factors, including: (1) whether the school
district has made reasonable efforts to accommodate the child in a regular classroom; (2) the
educational benefits available to the child in a regular class, with appropriate supplementary aids
and services, as compared to the benefits provided in a special education class; and (3) the
possible negative effects of the inclusion of the child on the education of the other students in the
class. [25]
If, after considering these factors, the court determines that the school district was
justified in removing the child from the regular classroom and providing education in a
segregated, special education class, the court must consider the second prong of the
mainstreaming test whether the school has included the child in school programs with
nondisabled children to the maximum extent appropriate. See Daniel R.R., 874 F.2d at 1048,
1050. IDEA and its regulations do not contemplate an all-or-nothing educational system in
which handicapped children attend either regular or special education. Id. at 1050. The
regulations under IDEA require schools to provide a continuum of alternative placements . . . to
meet the needs of handicapped children. 34 C.F.R. 300.551(a). As the Fifth Circuit stated:
The school must take intermediate steps wherever appropriate,
such as placing the child in regular education for some academic classes
and in special education for others, mainstreaming the child for
nonacademic classes only, or providing interaction with nonhandicapped
children during lunch and recess. The appropriate mix will vary from
child to child and, it may be hoped, from school year to school year as
the child develops.
Daniel R.R., 874 F.2d at 1050. Thus, even if a child with disabilities cannot be educated
satisfactorily in a regular classroom, that child must still be included in school programs with
nondisabled students wherever possible.

232

* * *
IV. DID THE SCHOOL DISTRICT COMPLY WITH IDEA?
We now reach the dispositive question in this case: Whether the district court erred in
holding that the School District failed to comply with IDEAs mainstreaming requirement.
Initially, applying the first part of the two-part test set forth above, supra Part II, we consider
whether the School District has met its burden of proving that Rafael could not be educated
satisfactorily in a regular classroom with supplementary aids and services.
* * *
B. Application of the Daniel R.R. test
In Part II of this opinion, we outlined three factors that should be considered by a court in
determining whether a child with disabilities can be educated satisfactorily in a regular classroom
(the first part of the Daniel R.R. test): (1) whether the school district has made reasonable efforts
to accommodate the child in a regular classroom with supplementary aids and services; (2) a
comparison of the educational benefits available in a regular class and the benefits provided in a
special education class; and (3) the possible negative effects of inclusion on the other students in
the class. We now consider each of these factors, looking to the relevant fact findings of the
district court to determine whether those findings are clearly erroneous, and if not, whether they
support the district courts ultimate legal conclusion that the School District violated the
mainstreaming requirement of IDEA.
As to the first factor, the district court found that the School District made only negligible
efforts to include Rafael in a regular classroom. Specifically, the court found that during the
1989-90 school year, the only period during which the School District mainstreamed Rafael in a
regular classroom, the School District placed Rafael in the developmental kindergarten class
without a curriculum plan, without a behavior management plan, and without providing
adequate special education support to the teacher. Oberti II, 801 F. Supp. at 1402; see also id. at
1396, 1398. Further, the court found that the School District has since refused to include Rafael
in a regular classroom largely based on the behavioral problems experienced by Rafael in the
kindergarten class during the 1989-90 school year. Id. at 1396, 1403. For the 1990-91 year, the
court found that Rafael was placed in a segregated class with no meaningful mainstreaming
opportunities, id. at 1397, and that the School Districts consideration of less restrictive
alternatives for the 1990-91 school year was perfunctory. Id. at 1396.
There is very little evidence in the record that conflicts with these findings. The School
District produced some evidence that the kindergarten teacher and the school psychologist
attempted to modify the curriculum in that class and to come up with methods of controlling

233

Rafaels behavior problems. See supra n.7. However, the record reflects that the School District
had access to information and expertise about specific methods and services to enable children
with disabilities like Rafael to be included in a regular classroom, see supra typescript at 15, but
that the School District did not provide such supplementary aids and services for Rafael in the
kindergarten class. [26]
Rafaels IEP for the 1989-90 school year included no provisions for supplementary aids
and services in the kindergarten class aside from stating that there will be modification of
regular class expectations to reflect Rafaels disability. The only goal provided for the regular
kindergarten teacher was to facilitate Rafaels adjustment to the kindergarten classroom. After
reviewing this IEP along with the rest of Rafaels education records, Dr. McGregor testified that
no supplementary aids and services were provided for Rafael in the 1989-90 kindergarten class.
See supra n.9.
Moreover, there is no evidence in the record that the School District gave any serious
consideration to including Rafael in a regular classroom with supplementary aids and services
after the 1989-90 school year; and the School District does not appear to dispute this fact.
Further, Nancy Leech, the Winslow speech therapist (and one of the School Districts witnesses)
admitted that Rafael had not been included in any school programs with nondisabled children at
Winslow, apart from attending lunch and school assemblies.
In view of the foregoing, the district courts finding that the School District has not taken
meaningful steps to try to include Rafael in a regular classroom with supplementary aids and
services is not clearly erroneous. We also note that the district court did not fail to give due
weight to the agency proceedings on this issue since the ALJ did not even consider whether the
School District had made efforts to include Rafael in a regular classroom with supplementary aids
and services, as is required by IDEA. See Greer, 950 F.2d at 698 (school districts determination
that child with Downs syndrome would receive more benefit in a segregated special education
class is due no deference because school officials failed to consider what benefits she would
receive from education in a regular classroom with appropriate supplemental aids and services
(emphasis in original). Accordingly, the School Districts failure to give adequate consideration
to including Rafael in a regular classroom with supplementary aids and services supports the
district courts legal conclusion that the School District violated IDEA.
As to the second factor a comparison of the educational benefits of the segregated
placement in Winslow with the benefits Rafael could obtain from placement in a regular
classroom the district court found that various experts who testified on Rafaels behalf have
convincingly refuted the School Districts assertion that such services could not be delivered
within the matrix of a regular education class without disrupting the class or converting it into a
special education class. Oberti II, 801 F. Supp. at 1403 n.17. The court also found that Rafael

234

would benefit academically and socially from inclusion in a regular classroom. Id. at 1404.
Moreover, the district court found, based on expert testimony, that nondisabled children in the
class will likewise benefit from the inclusion of Rafael in a regular classroom. Id. at 1404; see
also supra n.24.
The School District points to some evidence in the record that conflicts with these
findings. Specifically, Dr. Urban testified for the School District that, in his opinion, a regular
teacher would not be able to communicate with Rafael and that a regular curriculum would have
to be modified beyond recognition to accommodate Rafael. See supra Part I.C. However, the
Obertis experts, Drs. Brown and McGregor, described various commonly applied methods that
could be used to educate Rafael in a regular classroom and testified that, although Rafael has
severe intellectual disabilities, a regular teacher with appropriate training would be able to
communicate effectively with Rafael. See supra Parts I.B & C. They testified that many of the
special education techniques used in the segregated Winslow class could be imported successfully
into a regular classroom and that the regular teacher could be trained to apply these techniques.
Id. Further, the Obertis experts testified at length that inclusion in a classroom with nondisabled
students would benefit Rafael substantially. Id. In addition, Amy Goldman testified that speech
and language therapy not only could be provided in a regular classroom, but would be more
effective for Rafael in an integrated setting. See supra Part I.C.
In short, the parties experts disagreed on the respective benefits of a segregated versus
an integrated placement for Rafael, and the district court was in a better position than we are to
evaluate their testimony. We therefore defer to that courts findings, which, at all events, are not
clearly erroneous. We note also that the district court did not fail to give due weight to the
agency proceedings on this factor since the courts findings were based largely on new expert
testimony that was not before the ALJ. Additionally, we agree with the district courts legal
conclusion that, although including Rafael in a regular classroom would require the School
District to modify the curriculum, the need for such modification is not a legitimate basis upon
which to justify excluding a child from the regular classroom unless the education of other
students is significantly impaired. Oberti II, 801 F. Supp. at 1403; see also 34 C.F.R. Part 300,
App. C Question 48 (school must set forth in the IEP any modifications of the regular education
program necessary to accommodate a disabled child). Thus, a comparison of the educational
benefits of a segregated versus an integrated placement for Rafael supports the district courts
conclusion that the School Districts selection of a segregated placement did not comply with
IDEA.
As to the third factor the potentially disruptive effect of Rafaels presence on the other
children in a regular classroom the record again contains conflicting evidence. The School
District presented numerous witnesses before both the ALJ and the district court who testified to
Rafaels extremely disruptive behavior in the 1989-90 kindergarten class and in several other

235

teaching environments. See supra Parts I.B & C. In contrast, the Obertis experts Drs. McGregor
and Brown evaluated Rafael and testified that in their opinion he would not at that point in time
(nearly two years after Rafaels experience in the kindergarten class) cause any significant
disruption in a regular classroom if provided with adequate supplementary aids and services, such
as the assistance of an itinerant instructor with special education training, special education
training for the regular teacher, modification of some of the academic curriculum to
accommodate Rafaels disabilities, parallel instruction to allow him to learn at his academic level,
and use of a resource room.
After evaluating the evidence on both sides, the district court found that [t]here is
nothing in the record which would suggest that at this point in time Rafael would present similar
behavior problems if provided with an adequate level of supplementary aids and related services
within the matrix of a regular education class. In fact, the record supports the opposite
conclusion. Oberti II, 801 F. Supp. at 1403 (emphasis added). The court found that the
behavioral problems Rafael experienced during the 1989-90 school year in the developmental
kindergarten class were exacerbated and remained uncontained due to the inadequate level of
services provided there, that Rafaels behavioral problems were diminished in settings where an
adequate level of supplementary aids and services were provided, and that both the School
District and the ALJ improperly justified Rafaels exclusion from less restrictive placements in
subsequent years based upon those behavior problems. Id.
Although the School District presented ample evidence of Rafaels disruptive behavior in
the 1989-90 kindergarten class, the Obertis evidence supports the district courts finding that
Rafael would not have had such severe behavior problems had he been provided with adequate
supplementary aids and services in that kindergarten class, and that Rafael (who at the time of the
district court trial was two years older than when he attended the kindergarten class) would most
likely not present such problems if he were included in a regular class at that time. We therefore
conclude that the district courts findings on this issue are not clearly erroneous, and, accordingly,
that consideration of the possible negative effects of Rafaels presence on the regular classroom
environment does not support the School Districts decision to exclude him from the regular
classroom.
We also conclude that the district court did not abuse its discretion in deciding not to
defer to the findings of the ALJ on the issue of whether Rafael would significantly disrupt a
regular classroom. As the court noted, the ALJs findings were largely and improperly based
upon Rafaels behavior problems in the developmental kindergarten, as well as upon his
intellectual limitations, without proper consideration of the inadequate level of supplementary
aids and services provided by the School District. Oberti II, 801 F. Supp. at 1404 (emphasis
added).

236

For all of these reasons, we agree with the district courts conclusion that the School
District did not meet its burden of proving by a preponderance of the evidence that Rafael could
not be educated satisfactorily in a regular classroom with supplementary aids and services. We
will therefore affirm the district courts decision that the School District has violated the
mainstreaming requirement of IDEA. Because we have come to this conclusion based on
application of the first part of the Daniel R.R. two-part test, we need not apply the second part of
the test (whether the child has been included in programs with nondisabled children whenever
possible). We note, however, that in the event that the Child Study Team were to determine in
designing an IEP for Rafael in the future that education in a regular classroom with
supplementary aids and services could not be achieved satisfactorily at that time and therefore
would not be required under IDEA, the Team would then have to satisfy the second part of the
Daniel R.R. test, ensuring that Rafael is included in regular school programs with nondisabled
students whenever possible. [29]
Finally, in affirming the district courts order that the School District develop a more
inclusive program for Rafael in compliance with IDEA for the upcoming school year, we
emphasize that neither this court nor the district court is mandating a specific IEP for Rafael. The
development of Rafaels IEP, and the specific nature of his placement, is, of course, the job of the
Child Study Team.
The order of the district court will be affirmed.

237

OBERTI v. BOARD OF EDUCATION

OF THE BOROUGH OF CLEMENTON SCHOOL DISTRICT
CASE NOTES
2. The Child Study Team is an interdisciplinary group of appropriately certified persons,
which, pursuant to New Jersey regulations, includes a school psychologist, a learning disabilities
teacher-consultant and a school social worker, all of whom are employees of the School District.
See N.J.A.C. 6:28-3.1. The Team was responsible for evaluating Rafael to determine his
eligibility for special education and related services under IDEA, and continues to be responsible
for developing, monitoring and evaluating the effectiveness of his individualized education
program. Id.
3. When a dispute arises between the parents of a disabled child and the school over the
adequacy of the IEP proposed for the child, either party has a right to resolve the matter through a
state administrative proceeding known as an impartial due process hearing. 20 U.S.C.
1415(b)(2). Under the New Jersey regulations, due process hearings are held before an
administrative law judge of the New Jersey Office of Administrative Law. See N.J.A.C. 6:282.7(e)4.iv.
4. Although Rafael was placed in a school within the Winslow Township School District, the
Clementon School District has remained responsible for Rafaels education under IDEA because
Rafael resides within the Clementon School District.
5. Rafaels class went to the lunchroom and assemblies with nondisabled children, but he and his
classmates had no opportunity to socialize with the other children. Rafael did not participate in
any classes, such as art, music, or physical education, with nondisabled children.
11. 20 U.S.C. 1415(e)(2) provides in part: the court shall receive the records of the
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.
12. Jeanne Oberti testified before the district court that Rafael was at that time involved in a
number of extra-curricular activities with nondisabled children in his neighborhood, including Tball league, bowling league, Sunday school classes, and other church-related activities for
children. She told the court that she had received no complaints about behavior problems in
connection with any of these activities.
13. Dr. Urban also testified that, in his view, Dr. Browns evaluation of Rafael was highly
suspect because Dr. Brown had never observed Rafael in a classroom environment.
15. New Jersey is a participating state, subject to the requirements of the Act. See Lascari v. Bd.
of Educ., 116 N.J. 30, 560 A.2d 1180, 1182 (1989).
17. The federal and state regulations include a similar mandate that children with disabilities be
educated in the least restrictive environment. See 34 C.F.R. 300.550-300.556; N.J.A.C. 6:282.10. 34 C.F.R. 300.550 echoes the mainstreaming requirement of the Act: (b) Each public
agency shall insure:

238

(1) That to the maximum extent appropriate, handicapped children are educated with children
who are not handicapped, and (2) 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.
18. Professor Martha Minow has written that IDEA embodies an express tension between its
two substantive commitments to the appropriate education and to the least restrictive
alternative. This tension implicates the choice between specialized services and some degree of
separate treatment on the one side and minimized labeling and minimized segregation on the
other. Martha Minow, Learning to Live with the Dilemma of Difference: Bilingual and Special
Education, 48 Law & Contemp. Probs. 157, 181 (Spring 1985); see also Martha Minow, Making
All the Difference: Inclusion, Exclusion and American Law, 35-39, 81-86 (1990); David M.
Engel, Law, Culture, and Children with Disabilities: Educational Rights and the Construction of
Difference, 1991 Duke L.J. 166, 187 (1991) (discussing how parents who seek more integrated
placements for disabled children often find themselves in the double-bind of having to stress both
the childs unique needs and the childs similarities with nondisabled children).
19. The Supreme Court, however, has never had occasion to apply the mainstreaming
requirement of IDEA; mainstreaming was not at issue in Rowley or Honig.
20. Education in the regular classroom, in this context, means placement in a regular class for a
significant portion of the school day. Of course, children with disabilities who are placed in
regular classrooms will most likely receive some special education and related services outside of
the regular classroom, such as speech and language therapy or use of a resource room, see infra
n.22.
22. The New Jersey regulations define resource rooms as instructional centers offering
individual and small group instruction in place of regular classroom instruction to students with
disabilities who are placed in regular public school classes but who need the special services
provided in a separate learning center. N.J.A.C. 6:28-4.3(c) & (d).
23. In passing the Act, Congress recognized the importance of teaching skills that would foster
personal independence [and] dignity for handicapped children. Polk, 853 F.2d at 181
(discussing Acts legislative history). Learning to associate, communicate and cooperate with
nondisabled persons is essential to the personal independence of children with disabilities. The
Acts mainstreaming directive stems from Congress concern that the states, through public
education, work to develop such independence for disabled children.
24. Courts should also consider the reciprocal benefits of inclusion to the nondisabled students in
the class. Teaching nondisabled children to work and communicate with children with disabilities
may do much to eliminate the stigma, mistrust and hostility that have traditionally been harbored
against persons with disabilities. See Minow, Learning to Live with the Dilemma of Difference,
48 Law & Contemp. Probs. at 160, 202-11; Winners All: A Call for Inclusive Schools, Report to
the National Assn of State Bds. of Educ., at 14 (1992); Oberti II, 801 F. Supp. at 1404
(nondisabled children are likely to benefit and learn from children with disabilities who are
included in regular classroom).
At the state administrative hearing in this case, a parent of a nondisabled child in the Clementon
Elementary School kindergarten class was asked by counsel for the Obertis whether she would
have any concerns if Rafael were included in a class with her child. She responded, No,

239

explaining that she believed disabled and nondisabled children learned from each other by
working and playing together. See supra n.10.
25. Additional factors may be relevant depending on the circumstances of the specific case. For
example, other courts have considered cost as a relevant factor in determining compliance with
the Acts mainstreaming requirement. See, e.g., Greer, 950 F.2d at 697; Roncker, 700 F.2d at
1063. Since the parties have not raised cost as an issue, we do not consider it here. See Daniel
R.R., 874 F.2d at 1049 n.9.
26. We note that mainstreaming Rafael for a half-day during the 1989-90 school year was not the
idea of the School District, which had recommended an entirely segregated placement for that
year. Rather, Rafaels placement in the developmental kindergarten class was only the result of
the Obertis urging. Oberti II, 801 F. Supp. at 1395.
29. We also note that, as the Obertis counsel acknowledged at oral argument, inclusion in
regular academic classes may become less appropriate for Rafael, given his cognitive disability,
as he reaches the higher grades. Dr. Brown testified before the district court:
. . . as Rafael children [with similar disabilities] all over this country, as they increase in
chronological age, they spend more and more of their time learning to function in non-school
settings; in respected, valued integrated settings like vocational environments. Rafael, as he gets
older, will have to leave school and learn how to function in a real job as part of his school
program.

240

Findings of Facts and Conclusions of Law

("Recommended Decision") filed December
8, 2004. After oral argument on this issue on
January 28, 2005 and a review of the
Recommended Decision and the record, I
ADOPT the Recommended Decision of the
Magistrate Judge and uphold the decision of
the hearing officer. I also AFFIRM the
Order issued by the Magistrate Judge on
December 2, 2004 (Docket Item 20) denying
the plaintiff's Motion for Leave to File a
Motion to Supplement the Administrative
Record because the Order is not clearly
erroneous or contrary to law. See Fed R.
Civ. P. 72(a).
In reviewing the Recommended
Decision, I give "due weight" to the hearing
officer's decision, and perform "something
short of a complete de novo review," Roland
M. v. Concord Sch. Comm., 910 F.2d 983,
989 (1st Cir.1990) (citations and internal
quotations omitted). I render "a bounded,
independent decision--bounded by the
administrative record and additional
evidence, and independent by virtue of
being based on a preponderance of the
evidence before the court." Id. at 989-90
(citation and internal quotations omitted).
Ms. S. correctly notes confusion on the
record and in the Recommended Decision
regarding the time it takes to transport L.S.
to his mother's house on the special
Page 100
education bus. [3] See Pl.'s Objection to
Recommended Decision of U.S. Magistrate
Judge ("Pl.'s Objection") at 8 n. 5 (Docket
Item 26); see also Recommended Decision
at 3, Finding 10 (stating that Ms. S. was told
the special education bus ride would be
forty-five to sixty minutes); id. at 8 (noting
that the hearing officer found that the special
education bus ride would take 100 minutes).
The record does not clearly demonstrate the
length of L.S.'s trip on the special education
bus. Both parties agreed at oral argument,
however, that the time issue is unimportant.
The Magistrate Judge did not rely on the
time issue and it does not affect my analysis
here.

Page 98
366 F.Supp.2d 98 (D.Me. 2005)
Ms. S., as parent and next friend of her
son, L.S., Plaintiff
v.
SCARBOROUGH
SCHOOL
COMMITTEE, Defendant
No. CIV. 04-111-P-H.
United States District Court, D. Maine.
Feb. 7, 2005
Richard L. O'Meara, Amy M. Sneirson,
Murray, Plumb & Murray, Portland, ME,
Page 99
for Ms. S., as Parent and Next Friend of Her
Son, L.S., Plaintiff.
Eric R. Herlan, Drummond, Woodsum
& MacMahon, Portland, ME, for
Scarborough School Committee, Defendant.
ORDER
AFFIRMING
THE
RECOMMENDED DECISION OF THE
MAGISTRATE JUDGE
HORNBY, District Judge.
Ms. S. is the mother of L.S., a student
with a severe learning disability. Because of
her employment, she is not able to be at
home at the end of the school day and her
child care arrangements do not always
guarantee that someone will be there when
L.S. arrives home from school. She has
requested, therefore, that every other week
[1] the Scarborough school bus driver ensure
that an adult is present at the bus stop before
letting L.S. off the bus in the afternoon and,
if no adult is present, arrange for L.S. to be
dropped off elsewhere. The Scarborough
School Committee has agreed to have the
bus stop in front of Ms. S.'s house, but will
not ensure the presence of an adult or agree
to the alternative arrangements. Scarborough
has offered to provide that guarantee,
however, on its special education bus. Ms.
S. contends that the least restrictive
environment provisions of the Individuals
with Disabilities Education Act ("IDEA"),
20 U.S.C. 1400-1487, and Maine law
require Scarborough to accommodate her
request on its regular school bus. [2] A
hearing officer disagreed, and the United
States Magistrate Judge upheld the hearing
officer's decision in his Recommended

241

Ms. S. also objects to the Magistrate

Judge's least restrictive environment
analysis. Pl.'s Objection at 4, 10. The least
restrictive environment provision of the
IDEA requires that, "[t]o the maximum
extent appropriate, children with disabilities
... [be] educated with children who are not
disabled." 20 U.S.C. 1412(5)(A). Maine's
least restrictive alternative requirement
closely tracks the federal provision. See
Maine Special Education Regulations
11.1, Chapter 101 of the Maine Department
of Education Regulations, available at
http://www.state.
me.us/education/
speced/contentrules.
htm.
("To
the
maximum extent appropriate, students with
disabilities ... shall be educated with
students who are not disabled."). Both the
federal and state provisions apply to
transportation. See 34 C.F.R. 300.553
(when providing nonacademic services,
including transportation, "each public
agency shall ensure that each child with a
disability participates with nondisabled
children in those services and activities to
the maximum extent appropriate to the
needs of that child"); Maine Special
Education Regulations 6.17 ("Special
education shall be provided consistent with
Part 11, Least Restrictive Educational
Alternative ....").
Ms. S. notes that the Magistrate Judge
expressed doubt whether the least restrictive
environment analysis applies in the
transportation setting. Pl.'s Objection at 4,
10. Regardless of the Magistrate Judge's
doubt, he did apply the least restrictive
environment analysis, concluding that
Scarborough has fulfilled its requirement to
educate L.S. in the least restrictive
environment. See Recommended Decision at
10 ("Even if the requirement does apply to
transportation, however, the school has
made the least restrictive transportation
environment available to L.S. at all times.").
I have my own doubt about the
application of the least restrictive
environment analysis, because it is not clear
that Ms. S.'s request is within the scope of
the IDEA. A request is beyond the reach of
the IDEA if it is made for personal reasons

unrelated to the student's educational needs.

SeeFick v. Sioux Falls Sch. Dist., 337 F.3d
968, 969-70 (8th Cir.2003) (concluding that
the defendant school district did not violate
the IDEA when it refused a mother's request
to change her daughter's
Page 101
drop-off address from her home to an afterschool day care center because the request
was made for personal rather than
educational reasons); see alsoGonzalez v.
Puerto Rico Dep't. of Educ., 254 F.3d 350,
352 (1st Cir.2001) ("Educational benefit is
indeed the touchstone in determining the
extent of governmental obligations under the
IDEA."). Ms. S. has requested the adult
hand-off because she is unable to guarantee
that an adult will always be present at her
home when L.S. gets off the school bus.
While Ms. S.'s request addresses her
understandably difficult child-care situation,
it does not address L.S.'s educational needs.
It is therefore not covered by the IDEA and
Maine's education laws. SeeFick, 337 F.3d
at 969-70; N. Allegheny Sch. Dist. v.
Gregory
P.,
687
A.2d
37,
40
(Pa.Cmwlth.1996) (holding that the IDEA
and Pennsylvania law did not require the
school district to transport the student to his
father's out-of-district home because "the
additional transportation requested serves
not to address any of Gregory's special
educational needs, but only to accommodate
the particular domestic arrangements which
Gregory's parents have made."); see
alsoTimothy H. v. Cedar Rapids Cmty. Sch.
Dist., 178 F.3d 968, 971-972 (8th Cir.1999)
(concluding that the failure to accommodate
a request for deviation from a facially
neutral transportation policy for a disabled
student did not violate the Rehabilitation Act
because the request was based on the
parents' non-educational preferences).
Even if Ms. S.'s request is within the
reach of the IDEA and Maine law, I agree
with the Magistrate Judge that Scarborough
has provided L.S. with the least restrictive
transportation environment. [4] Ms. S.
suggests that the hearing officer and
Magistrate Judge both failed to apply the
proper least restrictive environment analysis,

242

Pl.'s Objection at 4, 10; Pl.'s Mem. of Law at

23-24 ("Pl.'s Mem.") (Docket Item 11), and
argues that I should apply either the Daniel
R.R. or the Roncker test. See Pl.'s Mem. at
18-21. The Fifth Circuit created and the
Third, Tenth and Eleventh Circuits adopted
the Daniel R.R. test. L.B. v. Nebo Sch. Dist.,
379 F.3d 966, 977 (10th Cir.2004); Oberti v.
Bd. of Educ. of the Borough of Clementon
Sch. Dist., 995 F.2d 1204, 1215 (3d
Cir.1993); Greer v. Rome City Sch. Dist.,
950 F.2d 688, 696 (11th Cir.1991); Daniel
R.R. v. State Bd. of Educ., 874 F.2d 1036,
1048-50 (5th Cir.1989). Earlier, the Sixth
Circuit created the Roncker test, which the
Fourth and Eighth Circuits later adopted. [5]
DeVries v. Fairfax County Sch. Bd., 882
F.2d 876, 878-79 (4th Cir.1989); A.W. v.
Northwest R-1 Sch. Dist., 813 F.2d 158, 163
(8th Cir.1987); Roncker v. Walter, 700 F.2d
1058, 1063 (6th Cir.1983).
The Roncker test states that "[i]n a case
where the segregated facility is considered
superior, the court should determine whether
the services which make that
Page 102
placement superior could be feasibly
provided in a non-segregated setting."
Roncker, 700 F.2d at 1063. In its recent
adoption of the Daniel R.R. rather than the
Roncker test, the Tenth Circuit noted that
"[t]he Roncker test is most apposite in cases
where the more restrictive placement is
considered a superior educational choice."
L.B., 379 F.3d at 977. The court determined
that the Daniel R.R. test applies in all cases
and better tracks the statutory language. Id.
Although application of either test to this
non-academic setting is strained, I follow
the Tenth Circuit's reasoning, the weight of
authority and the plaintiff's substantial
reliance on Daniel R.R. in her brief, [6] Pl.'s
Mem. at 18-34, and apply the Daniel R.R.
test. [7]
The first inquiry of the Daniel R.R. test
is "whether education in the regular
classroom, with the use of supplemental aids
and services, can be achieved satisfactorily
for a given child." Daniel R.R., 874 F.2d at
1048. If the answer is no, the next inquiry is
"whether the school has mainstreamed the

child to the maximum extent appropriate."

Id. Under the first inquiry, the court
considers: (1) steps the school district has
taken to accommodate the student in the
regular classroom; (2) a comparison of the
educational benefits of the regular and
special education classrooms; and (3) the
effect of the student's inclusion on other
students in the regular classroom. Id. at
1048-50.
I apply the test here to the
transportation rather than the classroom
setting. Under the first prong of the first
inquiry, Scarborough has made an effort to
accommodate L.S. on the regular school
bus. It has agreed to provide door-to-door
transportation for L.S. on the regular bus to
Ms. S.'s home on the afternoons of the
alternate weeks when L.S. is residing with
Ms. S. rather than his father. See State of
Maine Special Education Due Process
Hearing, S. v. Scarborough Sch. Dep't, April
29, 2004 ("Hearing Decision"), Record at
147; Pl.'s Mem. at 2; Def.'s Mem. of Law at
9 (Docket Item 12).
I next compare the educational benefits
of the regular bus with the special education
bus. L.S. benefits from riding the regular bus
because of the opportunity to interact with
non-disabled peers. See Hearing Decision,
Finding 6, Record at 144. L.S. would lose
this benefit by riding the special education
bus only 25% of the time, the afternoons of
alternating weeks when he is residing with
his mother. See id., Record at 148. L.S.
could still interact with his non-disabled
peers on the regular bus the remaining 75%
of the time. L.S. does not receive an
educational benefit from riding the special
education bus that would weigh against the
benefit of the regular bus (although he
would receive the adult hand-off, which Ms.
S. contends is an education-related request).
But given the small amount of L.S.'s
transportation time involved, "[t]he impact,
both positive and negative, of riding the
special education bus in the afternoon on
alternate weeks is minimal." Id.
I now consider how L.S.'s inclusion
affects other students on the regular bus.

243

Although L.S.'s "behavior on the bus is

excellent," the procedure for arranging an
Page 103
adult hand-off if no adult is present at the
bus stop can delay students on L.S.'s bus,
and may also affect the schedule for students
on concurrent and subsequent bus runs.
Hearing Decision, Findings 6, 9, Record at
144-45; id. Discussion and Conclusion,
Record at 148. Ms. S. takes issue with the
hearing officer's and Magistrate Judge's
focus on potential problems that could arise
from the requested accommodation. Pl.'s
Objection at 3 n. 2. But Rick Soules, the
transportation director for Scarborough
schools, testified that if no adult were
present at L.S.'s bus stop, L.S.'s bus driver
might have to make at least one, but
frequently two and possibly three calls by
radio: first to the "bus office," where often
no one answers because the employees
(including Soules) are out driving buses,
then to the central office, and if the
receptionist is away from the desk and does
not answer the phone, then to Soules, who
would be driving another bus. Record at
278-279. These calls could delay L.S.'s bus,
the bus Soules would be driving and
subsequent bus runs, affecting around 120
students. [8] Id. at 279-80, 288. As the
Magistrate Judge noted, the hearing officer
was entitled to credit this testimony
regarding the effect of L.S.'s inclusion on
other students. See Recommended Decision
at 7-8; Hearing Decision, Finding 9, Record
at 144-45. Although this chain of events
may
occur
infrequently,
it
could
significantly affect a number of other
students riding the bus or waiting at school
for the bus to pick them up. Record at 27879, 288-90.
Under the first inquiry of the Daniel
R.R. test, the above factors (the steps
Scarborough has taken to transport L.S. on
the regular bus, the minimal impact of
removing him from the regular bus 25% of
the time, and the impact of the further
requested accommodation on the other
students) indicate that transportation on the
regular bus, with the use of supplemental
aids and services, cannot be achieved

satisfactorily on the afternoons when L.S.

travels to his mother's home. SeeDaniel
R.R., 874 F.2d at 1048. Because
transportation on the regular bus cannot be
achieved satisfactorily, I turn to the second
inquiry of the Daniel R.R. test, and ask
"whether the school has mainstreamed the
child to the maximum extent appropriate."
Id. Ms. S. does not argue that, other than the
requested transportation accommodation,
Scarborough has failed to mainstream L.S.
to the maximum extent appropriate. L.S. is
currently integrated in homeroom, physical
education, technology, art, "CSS," drama
club, field trips and lunch. Hearing
Decision, Finding 3, Record at 144; Ms. S.'s
Testimony, Record at 190. Although Ms. S.
objects to the hearing officer's resulting
conclusion that L.S. is "fully included for a
large portion of his day," Ms. S. does not
point to record evidence showing the
relative time spent in the regular and special
education
classrooms.
Recommended
Decision at 8; see Hearing Decision,
Discussion and Conclusion, Record at 148;
Pl.'s Mem. at 23. After considering the
record evidence and giving due weight to
the hearing officer's conclusion that L.S. is
included for a large portion of his day, I
conclude
that
Scarborough
has
mainstreamed L.S. to the maximum extent
appropriate. Under the Daniel R.R. test
proposed by Ms. S., Scarborough has not
violated the least restrictive
Page 104
environment provision of the IDEA because
transport of L.S. on the regular school bus,
with the use of supplementary aids and
services, cannot be achieved satisfactorily
and Scarborough has mainstreamed L.S. to
the maximum extent appropriate. [9]
I therefore AFFIRM the Magistrate
Judge's Recommended Decision.
SO ORDERED.
--------Notes:
[1] Ms. S has custody of L.S. every other
week. When L.S.'s father has custody, the
regular school bus delivers L.S. to the
father's house without any guarantees. L.S.
also takes the regular school bus

244

successfully every morning, regardless of

who has custody.
[2] Ms. S. also contends that Scarborough's
refusal to accommodate this request violates
the Rehabilitation Act, 29 U.S.C. 794.
Compl. 17-21 (Docket Item 1). Because
the IDEA and the Rehabilitation Act "apply
similar standards for substantive relief,"
Nieves-Marquez v. Puerto Rico, 353 F.3d
108, 125 (1st Cir.2003), my analysis under
the IDEA applies to both statutes. Ms. S. did
not object to the Magistrate Judge's use of
this approach or, as the Magistrate Judge
noted, suggest any significant difference in
the analysis of these statutes, see
Recommended Decision at 6 (Docket Item
23).
[3] Rick Soules, the transportation director
for Scarborough schools, testified that L.S.'s
regular bus ride is about twenty minutes
long. Soules Testimony, Record at 283. Ms.
S. testified that Soules told her that the
special education bus ride would be longer
because it travels all over Scarborough. Ms.
S. Testimony, Record at 199-200. The
previous year, the special education bus ride
was forty-five minutes to an hour. Id. at 199.
Although there was no testimony on the
exact length of L.S.'s ride on the special
education bus this year, Soules testified that
fewer students are riding the special
education bus this year. Soules Testimony,
Record at 293. This year, there are only
seven students total taking the special
education bus, transported over three runs:
four students on the first run, two on the
second run and one on the third run. Id. at
293-94.
[4] My analysis of the IDEA subsumes
Maine law, given the almost identical
statutory language. The plaintiff has not
proposed an alternative test to apply under
Maine law, and "submits that this is a case
where federal and state law are parallel and
that
each
mandates
provision
of
transportation services in the LRE [least
restrictive environment]." Pl.'s Objection at
11.
[5] The First Circuit has not adopted either
test. Scarborough notes that the First Circuit
has stated that "[a]ssaying an appropriate

educational plan ... requires a balancing of

the marginal benefits to be gained or lost on
both sides of the maximum benefit/least
restrictive fulcrum." Roland M., 910 F.2d at
993. See Def.'s Opp'n to Pl.'s Objection to
Recommended Decision at 10 (Docket Item
27). Ianalyze the issue under the Roncker
and Daniel R.R. tests as Ms. S. requests,
rather than rely on this limited statement by
the First Circuit.
[6] The plaintiff devotes a number of pages
to the Daniel R.R. test and spends only a
paragraph discussing the alternative
application of the Roncker analysis. See Pl.'s
Mem. at 18-34.
[7] I apply the Daniel R.R. analysis
suggested by the plaintiff to demonstrate
that it yields the same result as the analysis
employed by the Magistrate Judge and the
hearing officer. I do not determine whether
Daniel R.R. is always the appropriate test for
evaluating the least restrictive environment
in the transportation setting.
[8] These problems are minimized on the
special education bus because there are
fewer children involved (only seven children
total, transported over three bus runs), there
are two adults on the special education bus
(leaving the one who is not driving free to
attempt to contact Ms. S, perhaps by cell
phone), and children waiting for the special
education bus are better supervised than
children waiting for the regular bus,
reducing problems if subsequent bus runs
are delayed. Soules Testimony, Record at
293-94, 304-05.
[9] Application of the Roncker test yields
the same result. Under Roncker, to
determine whether the services that make
the segregated placement superior could be
feasibly provided in a non-segregated
setting, the court should: (1) weigh the
benefits of the segregated and nonsegregated settings; (2) consider if the
student is a disruptive force in the nonsegregated setting; and (3) evaluate the cost
of placing the student in the non-segregated
setting. Roncker, 700 F.2d at 1063. Both
parties agree that cost is not an issue. As
discussed, the impact of L.S. riding the
special education bus in the afternoons on

245

alternate weeks is not significant. L.S.'s

behavior on the regular bus is not disruptive,
but the adult hand-off on the regular bus
affects the students on L.S.'s bus and other
buses running at the same time, as well as

students on later bus runs. The Roncker test

thus leads to the same conclusion, that
Scarborough has provided L.S. with the least
restrictive transportation environment.
---------

246

STATE OF MAINE
SPECIAL EDUCATION DUE PROCESS HEARING
November 17, 2010
11.011H Parent v. Regional School Unit No. 21
REPRESENTING THE FAMILY:
REPRESENTING THE DISTRICT:

Richard OMeara, Esq.

Eric Herlan, Esq., and Mark Paige, Esq.

HEARING OFFICER:
Shari Broder, Esq.
This hearing was held and this decision issued pursuant to Title 20-A, MRSA 7202 et. seq., and
20 U.S.C. 1415 et. seq., and accompanying regulations. The hearing took place on September 20
and 28, 2010, and October 14 and 15, 2010 at the Department of Health and Human Services in
Biddeford, Maine. The hearing was concluded on October 20, 2010 at the offices of Drummond
Woodsum in Portland, Maine. Those present for the entire proceeding were the Parent, Attorney
OMeara, Susan Mulsow, Director of Special Education, Attorney Herlan, and the undersigned
hearing officer.
..
I.
PROCEDURAL BACKGROUND:
On August 10, 2010, the Parent filed this hearing request on behalf of her son
(Student). On September 13, 2010, a prehearing conference was held at the Department of
Health and Human Services (DHHS) in Biddeford, Maine. Participating in the conference
were: the Parent; Richard OMeara, Esq., counsel to the Parent and Student; Eric Herlan, Esq.,
and Mark Paige, Esq., counsel to Regional School Unit #21 (District or RSU #21)); Susan
Mulsow, Special Education Director; Julie Olsen, Assistant Special Education Director; and Shari
Broder, Hearing Officer. Documents and witness lists were exchanged in a timely manner. The
Parent submitted approximately 205 pages of exhibits (herein referenced as P-#), and the District
submitted approximately 610 pages of exhibits (herein referenced as S-#).
As noted above, the hearing took place over the course of five days. Both parties
requested to keep the hearing record open until November 3, 2010 to allow the parties to prepare
and submit posthearing memoranda. The District submitted a 32-page memorandum and the
Parent submitted a 50-page final argument. The record closed upon receipt of these documents on
November 3. The parties further agreed that the hearing officers decision would be due on
November 18, 2010.
II.
ISSUES:
1. Did the District commit procedural violations in the formulation of the Students
2010-2011 IEP and placement offer by predetermining his placement prior to
development of his IEP at the team meeting on May 13, 2010, and/or by failing to
evaluate the Student in all areas of suspected disability in connection with this
determination?

247

2. Are the IEP and placement for the 2010-2011 school year reasonably calculated to
provide the Student with a free appropriate public education (FAPE) in the least
restrictive environment?
3. Has the District engaged in adverse actions against the Student and Parent in
retaliation for filing this due process complaint?
4. If the hearing officer finds a violation of any of the above, what remedies are
appropriate?
The District questioned whether the hearing officer had authority to rule on the third issue, and
objected to consideration of this issue. The District also questioned whether the special education
teachers filing of a request for protection from harassment was District action. These issues are
addressed below.
III
FINDINGS OF FACT
1. The Student is a XX year old boy (DOB: xx/xx/xxxx), who lives with his mother (the Parent)
and xx year-old sister in Cape Porpoise, Maine. Both the Student and his sister attend
Kennebunkport Consolidated School (Consolidated), which is their neighborhood
elementary school.
2. The Student is currently eligible for special educational and related services under the
category of Other Health Impairment (OHI).
3. When the Student was xx old, he was placed with the Parent in foster care. The Parent
adopted the Student when he was xx years old.
4. At age xx, Child Development Services (CDS) conducted testing to determine whether the
Student was eligible for services under the Individuals with Disabilities Education Act
(IDEA). His speech/language evaluation included the Preschool Language Scale-3, where his
total language score was in the first percentile, indicating a significant delay in language
skills in both expressive and receptive language. [S-268] His occupational therapy evaluation
showed moderate delays in fine motor development, but he was processing most types of
sensory input appropriately. [S-278] Alan Finks psychological evaluation revealed a 68 IQ
equivalent on the Slosson test, placing the Student in the second percentile. [S-272] Dr. Fink
recommended a developmentally therapeutic preschool program with emphasis on general
language, cognitive enrichment and building of attention span. [S-274] The Student was
eligible for special services as a student with a speech-language impairment.
5. During the 2007-08 school year, the Student attended Childs Journey Preschool in Arundel,
a developmental preschool, and received speech/language and occupational therapy services.
After Childs Journey closed, the Student attended the Spurwink Therapeutic Preschool, a
highly structured program for children with disabilities. The Student attended Spurwinks
program for three hours each day, five days a week, and his program consisted of specially
designed instruction, speech, occupational and physical therapies. [S-183] His classroom had
a ratio of three adults for six children, with one-on-one assistance as needed. [Id.] During an
observation there on March 16, 2009, the Student appeared to be happy and doing very well,
and this was consistent with the views of the Parent. [S-183, Testimony of Parent] In this
program, the Student made significant gains and enhanced his language development. [S-162,
186-187, 213, 227] At Spurwink, the Student had an individualized behavior management

248

6.

7.

8.

9.

plan containing intervention strategies to address certain behavioral problems. [S-167-168,

227-228]
In September 2008, the Student was referred to the Pediatric Evaluation for Development
Solutions Program (PEDS) for evaluation due to concerns around his developmental delay,
hyperactivity, and previous evaluations indicating possible mental retardation. [S-236]
Donald Burgess, M.D., the Students pediatrician, conducted part of this evaluation. Laura
Slap-Shelton, Psy.D., conducted part of the PEDS evaluation as well. [S-230-235] Dr.
Burgesss medical assessment contained the following diagnoses: ADHD-combined type,
anxiety disorder NOS, low average cognitive ability, global developmental delay, mixed
expressive and receptive language disorder, phonological disorder, fine and gross motor
delays, a history of recurrent otitis media-status post PE tube placement and adenoidectomy,
history of ankyloglossia-status post frenectomy, and mild persistent asthma. [S-241-242] The
Students scores on the Wechsler Preschool and Primary Scale of Intelligence were a verbal
IQ of 83, performance IQ of 82, and full-scale IQ of 80. [S-232] This placed him in the low
average range for cognitive abilities. While being somewhat higher than his earlier testing,
Dr. Slap-Shelton thought that this score likely underestimated the Students cognitive abilities
secondary to the effects of his receptive language difficulties, attention, and our difficulties
in always understanding what he was saying when responding to questions. [S-232]
In preparation for the Students transition to xx, the Parent wrote a letter to the IEP team
elaborating upon the Students needs, and offering her perspective about what has helped
him. [S-176-178, 265-66] She expressed her view that [the Student] copies behaviors, so
inclusion with a regular classroom is very important. I do not want him in a behavioral
classroom. [S-178, 266]
In the spring of 2009, Kristine Casey, the special education teacher who runs a program at
Kennebunk Elementary School (KES) for students with behavioral challenges, observed
the Student in his program at Spurwink. When she read the Parents letter described in Fact
#7 above, she thought it sounded like a great description of her program at KES. Ms. Caseys
program serves 11 students in grades K-3. All students are assigned to the mainstream
classroom, and each attends at least once a day, but some spend more time in the mainstream.
Lunch and recess are with mainstream peers. As students meet their goals, they get
mainstreamed more using a level system. Ms. Casey uses parts of regular curriculum in
class, although some students receive this instruction in the mainstream, and some subjects
are modified for students with learning differences. Two of the students on her caseload are
in consultation status, attending mainstream classes all the time, and others are served in both.
Each child has behavioral challenges, including autism, ADHD, anxiety, and emotional
disabilities. She works with these students to help them manage their behaviors. Students
who initially spend a lot of time in her classroom move on once they have the tools to
manage their behaviors. Ms. Casey has four educational technicians (ed techs), and they
each work with all of the students, and team with regular education teachers and specialists.
Her team includes an occupational therapist, physical therapist, school psychologist,
speech/language therapist, and a social worker. The ed techs are trained to work with
students with behavioral needs, and they have worked in her program longer than she has.
On May 19, 2009, the District convened an IEP team meeting to consider the Students
transition to xx. At the meeting, Special Education Director Susan Mulsow suggested placing

249

the Student in Ms. Caseys program at KES because it was similar to the Students program
at Spurwink in which he was doing so well. Her experience was that children who succeed in
those programs do well transitioning into similar programs, and then can be shifted into the
mainstream if appropriate. The Parent, however, was adamantly opposed to this, and wanted
the Student to be given a chance to attend the less restrictive program at Consolidated. A
majority of the team members agreed to try this placement with ed tech support for six to
eight weeks, and then reassess the Students progress. [Testimony of S. Mulsow] Christine
Peskurich, the resource room teacher at Consolidated, was assigned to be the Students case
manager. The Student was to be mainstreamed, but with 6.5 hours per day of ed tech support,
and the following services: 90 minutes per week of speech therapy; 60 minutes per week of
occupational therapy; 30 minutes per week of physical therapy; 30 minutes per week of social
work services, and one hour of special education consultation. [P-42] At this meeting, the
Students eligibility category was changed from Speech and Language to Other Health
Impaired, based upon the PEDS diagnoses. In the Consideration of Special Factors section
of the IEP, the form reads, In the case of a child whose behavior impedes the childs
learning or that of others consider the use of positive behavioral interventions and supports
and other strategies to address the behavior . . . If needed, indicate where it is addressed in the
IEP. [P-35] In response, the IEP read See # (LRE explanation)(9/10/2009 PBSP on file)
[Id.] Although there was an LRE explanation [P-43], none of the witnesses at the hearing
knew to what the 9/10/2009 PBSP on file referred.23
10. The Student was placed in Kathy Cmaylos xx class, where Ms. Cmaylo immediately faced
challenges with the Students inability to comply with directions or stay on task. [Testimony
of K. Cmaylo] Compliance problems affected his entire day. For example, when asked to
come to the carpet, he would refuse, and would not move. [Id.] The ed tech would try to
engage him or cajole him into coming, but often this would not work. When confronted
directly, the Student would escalate in his response with behaviors like foot stomping, or
becoming louder in an effort to not comply. [Id.] Sometimes, he would try to get out of the
classroom. Often, Ms. Cmaylo, who had 16 or 17 students in the class, would have to deal
with the Student directly, as he was more likely to respond to her than to an ed tech. Ms.
Cmaylo initially had two ed techs assigned to support three students. When their efforts did
not work, Ms. Cmaylo would have Ms. Peskurich come to her classroom to help with the
Student so Ms. Cmaylo could focus on her other students. [Id.] The noise created by the
Student, and the time Ms. Cmaylo needed to spend directly with him interfered with the
learning of the other students. The Student also needed support once given a task. The
Student heard what she said, as he would often repeat it back to her, but she wondered
whether he didnt understand enough of it to comply. Because the Student did not completely
understand the directions, Ms. Cmaylo would have to repeat them again, then either she or an
ed tech would have to begin the task with him. It also helped to break the task down into
many small steps, but to give the Student only one or two steps at a time. The Student also
desperately wanted a friend, but had difficulty engaging with peers. For example, he wanted
to be first to go to lunch, but when it was not his turn, he would go to the front of the line
23

Adding to the mystery of the PBSP was the fact that its date was several months after this IEP
team meeting. This reference continued to appear in the Students IEPs, and remained a mystery
unexplained by any of the Districts witnesses at the hearing.

250

11.

12.
13.

14.

anyway. If another student told him it was not his turn, the Student would refuse to move,
and do other things like shake a fist in the other childs face, or push his classmates.
Consequently, other children were afraid to play with him.
After a few weeks of school, Ms. Peskurich sought help from Ms. Casey, the teacher who ran
the behavioral program at KES. [S-149-155] She reported to Ms. Casey that she was having a
very difficult time with the Student, who was refusing to do anything, pushing and hitting
other students, when I/ed tech work with him, he always has to be in control. I am at a loss
for words right now. [S-155] She asked Ms. Casey for suggestions, and perhaps an example
of a behavior plan. [Id.] Ms. Peskurich runs a resource room with approximately 20 children
in grades K-5, most of whom have learning disabilities. Ms. Peskurich is certified in many
reading and math programs, and the students with whom she works come into her classroom
for specialized instruction in these subjects. She does not have specialized training in
working with children with behavioral problems. Two ed techs assist her in the resource
room. Ms. Casey gave Ms. Peskurich some advice. Ms. Peskurich then turned to school
psychologist Joe Wojcik for a behavior plan. Dr. Wojcik observed the Student on four
occasions. [S-126-139] He noted that the behaviors needing to be addressed were speaking
out of turn and refusing to comply with teacher directions. [S-138] He recommended
developing a behavior plan to address these issues, and made a number of other suggestions
for providing positive reinforcement and praise. [Id.] Ms. Peskurich then incorporated these
suggestions into a positive behavioral support/intervention plan form she downloaded from
the Internet. [Testimony of C. Peskurich, J. Wojcik, S-343] She did not conduct a formal
functional behavior assessment (FBA) as defined in the Maine Uniform Special Education
Regulations, and has never been involved with an FBA. Although she did not share this
document with the Parent or Dr. Wojcik, she used it regularly in working with the Student,
and prepared data collection charts to test the effectiveness of the interventions. [Testimony
of C. Peskurich, S-344-401] The Student also had a quiet area in Ms. Cmaylos room, and
one in Ms. Peskurichs room, and she or another staff member provided support to him
whenever he needed it. [Testimony of C. Peskurich]
Due to the death of the Students cousin, who was also a student at Consolidated, the IEP
team was unable to meet to review the Students progress in October as originally planned.
The IEP team met on December 17, 2009. [S-90] The team discussed how the Student was
progressing in school, and discussed his behavioral challenges. Although Ms. Peskurich did
not share her behavior intervention plan form, she shared data charts she and her staff had
compiled of the Students challenging behaviors. The team agreed that the Student would
begin receiving math and reading instruction for 45 minutes per subject per day in the
Resource Room. [S-91] There was discussion that the Student did not have a one-on-one ed
tech, but that he had such support as needed within the classroom, specials and recess. [Id.]
The team also agreed that the Student should go to the Resource Room at the end of the day
with the classroom ed tech to process the day and his behavior of the day. [Id.] He received
rewards under Ms. Peskurichs system of positive behavioral supports, such as additional
computer time, bubbles, and the like. [Testimony of C. Peskurich] Other methods for
addressing the Students behavior challenges were also discussed. [Id.]
Throughout the rest of the school year, the Students behavior continued to be a problem.
The data collected by Ms. Peskurich and other staff showed wide fluctuations from day to

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day, and did not indicate any real improvement. [Testimony of C. Peskurich, S-344-401, 560580] The Student liked working towards stickers in both the Resource Room and regular
classroom, which led to various tangible rewards, but sometimes these interventions did not
work. [Testimony of C. Peskurich] The Student continued to refuse to do things, push his
classmates, leave the classroom, and yell that he did not want to do as asked, both in the
Resource Room and regular classroom. [Id.] Other staff would try to de-escalate the Students
behavior, but if that did not work, Ms. Peskurich would have him sit quietly for five minutes,
then talk about his actions. [Id.] Sometimes, he would refuse to leave the regular classroom,
and Ms. Peskurich would have to leave her groups to address the Students needs. She
generally had a good rapport with the Student. The two made four rules together, and worked
on following them: (1) hands and feet to self; (2) use kind words: (3) walking feet; and (4)
ready to work. [Id.] Ms. Peskurich praised the Student when he made a good choice, and
praise worked very well with him. Nonetheless, Ms. Peskurich felt that her behavioral plan
was not working overall, and was very frustrated because she wanted to help the Student, but
did not see things as improving measurably.
15. At the January 25, 2010 IEP team meeting, the team agreed to evaluate the Student in the
areas of academic development and intellectual testing, and conduct a formal classroom
observation to gain a better understanding of the Students abilities. [S-88] The report of
these evaluations was dated April 15, 2010, and was shared with the Parent in preparation for
the April 29, 2010 IEP team meeting. [S-59] The report mentions the Students behavioral
difficulties throughout the school year, including speaking out of turn, refusal to comply with
teacher demands, and peer conflicts. [S-59] Ms. Peskurichs behavior plan was also
mentioned as being utilized to increase on task behavior. [Id.] The behavioral observation
stated that while the Students speech was at times garbled, he was generally understandable
and his thoughts were logically connected. [S-60] During formal testing, he was at times
fidgety, seemed to tire and lose interest, and appeared to not always be giving his best effort.
[Id.] The WISC-IV scores were as follows: verbal comprehension-85, perceptual reasoning73, working memory-74, processing speed-94, and full scale IQ-76.24 [Testimony of J.
Wojcik, S-62] Attention/comprehension index scores suggested that distractibility and lack of
effort might have contributed to the poor scores. [S-64] The behavior rating scores showed
that the Student was experiencing noteworthy behavioral difficulties both in the classroom
and at home. [S-64] The behavior rating scales completed by the Parent, ed tech Ms.
Raymond, and Ms. Cmaylo all indicated serious problems with aggression, hyperactivity,
impulsivity, and peer relationships, with all but the Parent indicating issues with depression.
[S-64] Dr. Wojcik thought the Student needed a teacher with expertise in behavioral
management. [Testimony of J. Wojcik]
16. On April 26 or 27, 2010, the Parent and Krysten Harper, the Students Spurwink case
manager, met with Ms. Peskurich to discuss the evaluation report. [Testimony of Parent, K.
Harper, C. Peskurich] Ms. Peskurich felt very emotional and teary during this meeting, and
testified that she had been feeling this way since March, as she felt overwhelmed by her
duties, including her responsibilities towards the Student. [Testimony of C. Peskurich] Ms.
Peskurich cared very much about the Student, but felt intimidated by the Parent, and also felt
24

During his testimony, Dr. Wojcik corrected errors in the reported test scores.

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that the Parent made her feel like she had failed the Student and did not care about him. Ms.
Peskurich remarked that she could have coordinated better with Ms. Cmaylo, and this would
have helped Student somewhat, but she touched base with Ms. Cmaylo every day, and did not
have time to do more than this. [Id.] Ms. Cmaylo, who was not at the meeting, testified that
she felt the same way. She thought that she made a Herculean effort with the Student, but
that it was unsuccessful, and what they tried to do was not enough to meet the Students
needs. [Testimony of K. Cmaylo] During this meeting, Ms. Mulsow called, and told Ms.
Peskurich that she should not be having such a meeting with the Parent by herself. [Id.] Ms.
Peskurich also reported that Ms. Mulsow thought the Student should be placed in the selfcontained program at KES. [Testimony of K. Harper, Parent] The Parent, however,
expressed her strong opposition to this placement. [Testimony of C. Peskurich, K. Harper]
17. At the IEP team meeting on April 29, 2010, the team discussed the Students annual review,
recent evaluation, and previous IEP goals. [S-44] Ms. Mulsow had followed the reports about
the Student, and thought that although he was making some progress, it was not enough.
[Testimony of S. Mulsow] Despite the schools best efforts, everyone agreed that what they
were doing was failing. Consequently, Ms. Mulsow and Dr. Wojcik proposed that the Student
would benefit from the self-contained program at KES. [Testimony of C. Peskurich, J.
Wojcik, S. Mulsow, S-45] They felt it would be in the Students best interest to be in a
smaller, very structured setting, with a team-based approach. [Testimony of S. Mulsow] Ms.
Mulsow felt the resource room model was not designed for students with significant, complex
disabilities, but was more of a tutorial model. The Parent did not agree with this placement,
so the team did not write an IEP that day. [S-45] Ms. Mulsow asked the Parent to visit the
KES program to observe and speak with the teacher, and the IEP team would reconvene
thereafter. [S-45] At the meeting, Ms. Cmaylo reported on the Students behavioral
difficulties, particularly his refusal to work, and added that although she saw him making
some gains, his progress was inconsistent and not at the rate the District would have liked to
see. [S-45] The Parent said that she wanted more positive behavioral supports in the
classroom and a written behavioral plan. [S-46, Testimony of Parent] She was not aware of
the plan Ms. Peskurich and Dr. Wojcik had developed, and felt like the school year was
wasted. [Testimony of Parent] The team agreed that it would compile a list of the Students
educational needs prior to reconvening in May. [S-33-35]
18. On May 10, 2010, the Parent visited the program at KES, and wrote a letter to Ms. Mulsow to
say that she thought such a placement for the Student was premature and would not be a good
fit at that time. [S-31] Among the Parents concerns were that the activity she observed
seemed young and reminded her of preschool, the program was geared towards behavior first
and academics second, and the ed techs at both Consolidated and KES had the same training.
[S-31] The Parent felt that the Students behaviors were secondary to his learning needs. [S31]
19. The IEP team met again on May 13, 2010. Although there was little disagreement about the
proposed IEP, drafted by Ms. Peskurich, the Parent disagreed with the rest of the team on the
issue of placement. [S-7] The team determined that the Student had not made sufficient
progress with his current IEP, and that the placement at Consolidated was not working for
him. [S-7, Testimony of K. Casey, C. Peskurich, S. Mulsow] In the new IEP, services
included two 30-minute sessions per week of speech and language services, 30 minutes per

253

20.

21.

22.

23.

month consult for social skills, physical therapy for 30 minutes per week and 30 minutes per
month consult, two 30-minute sessions per week of occupational therapy, and 4.5 to 6.5 hours
per day in the special education setting. [S-7] Most of the team thought the Student would
benefit from social work services, particularly for his social skills. The Parent declined these,
as she felt the social worker, Beverly Dow25, did not know the Student well, and it would just
result in one more pull-out. [Testimony of C. Peskurich, Parent] With the exception of the
Parent, the team believed that the KES program was most appropriate for the Student, as he
would benefit from a smaller group setting that specifically targeted behavioral interventions
throughout the school day, and the student to teacher ratio was lower. [S-7] The staff in the
KES program had a higher skill set necessary to address the Students behavioral issues, and
had more experience with children with his needs. [Testimony of K. Cmaylo] Ms. Casey did
not think giving the Student more ed tech time would work, even with a super ed tech,
because the team approach was necessary. [Testimony of K. Casey] They also agreed that the
Student should have a maximum opportunity to be mainstreamed with support throughout his
day. [S-7] The Parent felt strongly that the Student should remain at Consolidated in the
Resource Room program with one-on-one ed tech support in the mainstream classroom.
[Testimony of Parent, S-7]
The Student had a history of ear infections, as discussed in Dr. Burgesss report. On May 26,
2010, the Parent brought the Student to Marti Andrews for an audiological evaluation.
[P-144] Ms. Andrews, a Board certified audiologist, found that the Student had a moderate
hearing loss in both ears, which loss was conductive in nature. [P-144] Andrews opinion was
that with that degree of loss, the Student was unable to hear about 85% of conversationalloudness speech sounds within a few feet from the speaker. [P-144] She recommended a
medical/otological examination of the ears, reevaluation following medical intervention, and
preferential seating in school until the hearing loss could be resolved.
At Ms. Mulsows invitation, the Parent again visited KES for an observation prior to the end
of the school year. [Testimony of Parent] This did not, however, cause the Parent to change
her views, as she felt there was no evidence that the Student could not get the same
educational program in the regular education classroom. [Testimony of Parent]
Throughout the year, Ms. Cmaylos grade reports showed that the Student was making
progress in the classroom, and did not reflect the difficulties he was having. [Testimony of K.
Cmaylo, P-151-152] Ms. Cmaylo explained her philosophy that when a report card showed
only a students difficulties, it undermined his willingness to try harder. [Testimony of K.
Cmaylo] She saved those comments for conferences with parents, and refused to prepare a
report card that contained mostly needs improvement. Ms. Cmaylo was not satisfied with
the Students progress over the course of the school year, and felt he did not get what he
needed from xx due to the challenges presented by his disabilities. [Id.]
The Parent pursued an independent evaluation with neuropsychologist Laura Slap-Shelton in
July 2010. Although Dr. Slap-Shelton did not complete her evaluation or report in time for
the hearing26, she prepared a summary of her evaluation to date, and testified about her
recommendations for the Student. [Testimony of L. Slap-Shelton, P-190-198] She noted the

25

At KES, the Student would have a different social worker.

Dr. Slap-Shelton had not done a classroom observation or made all of the collateral contacts
she planned to make.
26

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24.

25.

26.

27.

Students serious behavioral challenges, and found that the Students academic achievement
was in the low average range, which was commensurate with his cognitive abilities.
[Testimony of L. Slap-Shelton] Dr. Slap-Shelton noted the Students difficulty processing
spoken language, and would expect many problems with compliance because of this. [Id.]
She recommended, among other things, that the school conduct a functional behavioral
assessment of the Student, and referred the Student to Elizabeth Fagan, a speech and
language pathologist, for an auditory processing evaluation. [Id.] Dr. Wojcik felt that these
test results showed that the Students behavior problems both at home and school were
getting worse. [Testimony of J. Wojcik]
Elizabeth Fagan administered the SCAN-3 test for auditory processing disorders (APD), and
concluded that the Student had such a disorder. [Testimony of E. Fagan] She tested the
Students hearing while he had otitis media, then again after the infection was gone. At the
second test, he did not have any hearing loss. [Id.] She recommended that the Student be seen
by an audiologist once he reaches age 7, and made numerous other recommendations for the
Students programming, including direct therapy three to five times per week. [P-181-183]
After reviewing the results of Dr. Fagans testing, Dr. Slap-Shelton concluded that the
Students significant language processing impairments, documented hearing loss, and APD
are likely to play a substantial role in his behavioral difficulties in the classroom setting, and
will need to be addressed and appropriately accommodated by his school. [P-197] She also
urged strong consideration of the recommendations in Dr. Fagans report. [P-197] It was Dr.
Slap-Sheltons opinion that the Student did not need to be in a self-contained classroom.
[Testimony of L. Slap-Shelton] She thought he should be in a regular education classroom
with some pullouts and support with social pragmatics and speech/language issues. [Id.] Dr.
Slap-Shelton recommended that a well-trained ed tech work with the student most of the day,
and that this person be trained to respond to the Students behavior plan. [Id.]
The Parent challenged the appropriateness of the IEP drafted in May 2010, and requested a
due process hearing on August 6, 2010. She invoked the Students stay-put rights so the
Student would remain at Consolidated when he began xx grade.
For xx grade, the Student was assigned to Julie Urbans class at Consolidated. There are 17
students in this class, and the Student has a one-to-one ed tech. Ms. Peskurich remained the
Students special education teacher.27 Ms. Peskurichs staff of ed techs has been reduced to
two, Gloria Bennett and Dana Ruel. The staff continues to monitor the Students behaviors,
and compile narratives of the Students day. [S-599-595] Ms. Urban reported similar
problems to those the Student encountered in xx, including trying to bolt from the building,
pushing classmates out of the way to be first in line, and the need to do things his own way.
[Testimony of J. Urban] Each child has his or her own square on the rug in the classroom, but
at least two or three times a week, the Student is on someone elses square, which upsets the
other students. If they ask the Student to move, he refuses. [Id.] Because of the number of
pullouts, the Students day is very disjointed, and he has many transitions, which are a
problem for him. When the class is doing a task he does not like, he is disruptive. Ms. Urban

27

The only other special education teacher in the school runs a life skills program for students
who are lower functioning than the Student.

255

28.

29.

30.

31.

did not feel the school was meeting the Students needs, and that he would do better in an
environment in which there were fewer students, and with a joint team effort. [Id.]
Although Ms. Peskurich started out having a good relationship with the Parent, she became
intimidated because the Parent was asking for things Ms. Peskurich could not do, and she was
the person to whom the Parent spoke when angry. [Testimony of C. Peskurich]
On Friday mornings, the whole school attends a morning meeting in the gym. After the
morning meeting on Friday, September 10, 2010, the Parent went to Ms. Urbans classroom,
at which time Ms. Urban called Principal Crandall and asked for help. On his way to the
classroom, Principal Crandall ran into the Parent. He stopped to speak with her, and
instructed her not to have discussions with teachers in their classrooms, but to come to the
office. He would then call the teachers into his office, where they could discuss the Student
in private. [Testimony of D. Crandall] He did not want these conversations taking place
where students could witness them. Mr. Crandall assumed that the Parent was then going to
leave the school. Instead, despite Principal Crandalls instructions, the Parent went to see
Ms. Peskurich in her classroom. The Parent entered the classroom, then stood in the doorway
to Ms. Peskurichs office, handed her Dr. Fagans report, and said in an angry tone, Make
sure everybody gets this. [Testimony of C. Peskurich, P-214] Students were in the vicinity,
at least one who was paused at the door because the Parent was blocking it. [Id.] The Parent
pointed her finger at Ms. Peskurich and said in what Ms. Peskurich felt was a demeaning
tone, Ill say this once and only once. You should all be ashamed of yourselves. [Id.] The
Parent then exited the classroom. [P-214] Ms. Peskurich was very upset and embarrassed,
particularly as the Parent did this in the presence of students and ed techs. Ms. Peskurich told
ed tech Dana Ruel that she was not going to put up with the Parents treatment of her
anymore, and left the room. [P-216] Ms. Peskurich immediately reported the incident to
Principal David Crandall, who observed that Ms. Peskurich was very upset and crying.
[Testimony of C. Peskurich, D. Crandall] Ms. Peskurich said she felt intimated by the Parent.
Later that morning, she spoke to her union representative, and reported the incident to Ms.
Mulsow. Because of the high degree of anxiety Ms. Peskurich experienced in dealing with
the Parent regularly, and the fact that she felt bullied by the Parent, she decided to take her
union representatives advice and go to the local police station, where she made a report, and
requested a protection from harassment order. [Testimony of C. Peskurich, P-214] Before
doing so, she also consulted with the school resource officer. She did not ask Mr. Crandall
for his permission to do this, but simply informed both him and Ms. Mulsow of her plans.
Following this incident, Mr. Crandall began acting as the go-between for communications
between the Parent and the Students teachers.
Ms. Peskurich uses the Wilson reading program with the Student, which seems to be helping
him to make progress. He has also improved some of his math skills, but has not met his
goals. [Testimony of C. Peskurich] Two ed techs work with him in the Resource Room, but
do not have specific training in behavior intervention. When the Student needs to leave Ms.
Urbans classroom for behavioral reasons, he comes to the Resource Room. This is also a
preferred activity for him, and it is a reward to go there and play on the computer. [Id.] His
behavior has not, however, improved.
On September 24, 2010, Krysten Harper observed the Student in Ms. Urbans classroom.
During circle time, the Student was fidgety, and although he was having trouble controlling

256

his body, he was quiet. He then began a writing activity, and stayed on task for 20-30
minutes. There was a short incident between the Student and a classmate, but overall, Ms.
Harper thought the Student did well, and did not witness unmanageable behaviors during the
observation. [Testimony of K. Harper] She also did not see any ed techs working with the
Student.
32. When Dr. Burgess saw the Student recently, it was unclear how well the Student could hear,
due to ear infections. He explained that auditory processing issues could have a lot of causes,
but in the Students case, it is due to the brain not being well developed and hearing loss.
Because the Student had an ear infection during this particular visit with Dr. Burgess, his
behavior escalated. [Testimony of D. Burgess] Dr. Burgess notes that the Student has a
language-based disorder, and difficulty understanding so that it is necessary to repeat things
multiple times for the Student to hear it. Although he did not have an opinion regarding
whether the KES program was appropriate, any program for the Student would have to work
on language at the same time as behavior. [Id.] While acknowledging that the Student had a
lot of challenging behaviors which make it difficult for him to be in a mainstream classroom,
Dr. Burgess did not think the Student should be in a program that had a purely behavioral
approach, as a creative approach was necessary to get the Student to be compliant most of the
time. [Id.] He added that the Student needed constant redirection, but that this was difficult
because he did not understand social rules, even though he knew them. [Id.] Dr. Burgess
recommended trying to mainstream the Student as much as possible, if he were not too
disruptive, to enable the Student to model behavior of nondisabled peers.
33. The Students speech and language therapist for both xx and xx grade, Stephanie Einsiedler,
felt that the Student needed help with expressive and receptive language, articulation,
following directions or listening skills and social pragmatic skills. [Testimony of S.
Einsiedler] She works with the Student for 30 minutes 3 times each week in these areas. His
IEP, however, only lists one speech therapy goal. [S-19] Ms. Einsiedler believes more
speech goals should be added to the IEP, but this was not done because the IEP team meeting
in May broke up abruptly. At KES, social pragmatic goals would be administered as a team
effort, rather than by the speech therapist. [Testimony of S. Einsiedler] This is why the
disputed IEP reduced the Students speech therapy to twice per week. Ms. Einsiedler had
concerns about the Students refusal to complete work, even when simplified, and his general
noncompliance with adult requests. Although he frequently listened to Ms. Cmaylo as an
authority figure, he was inappropriate with other adults, including ed techs and specialists.
[Id.] The Students anxiety, attentional problems, and fine motor problems make much of the
curriculum difficult for him. Ms. Einsiedler noted that the Students self esteem was an issue
because he would try to do his best, but his work would not look like that of the other
children. Ms. Einsiedler also took issue with Dr. Fagans report. Dr. Fagan is a speech
pathologist, not an audiologist, and the American Speech-Language-Hearing Association
(ASHA) says that only audiologists can diagnose auditory processing disorders. [Id.] Ms.
Einsiedler has experience working with children with such disorders, but could not agree with
an auditory processing disorder diagnosis made by a speech pathologist, and an audiologist
would not make such a diagnosis before a child reached age seven. She took issue with many
of Dr. Fagans methods, such as not getting an audiological evaluation by an audiologist
before administering the SCAN-3 test, not specifying how she gave the test (i.e. in a sound

257

booth or with headphones), and not stating what the scores meant in her report. [Id.] She
does, however, agree with some of Dr. Fagans recommendations, and that some of them
should be added as accommodations immediately.
34. Guilia Fornara, the Students physical therapist, felt that having physical therapy once per
week was appropriate for the Student. [Testimony of G. Fornara] She thinks the Student
would be better served at KES, a program in which Ms. Fornara worked previously. She
described it as an excellent program with a great team approach for working with children
whose behaviors interfere with their learning. [Id.] Ms. Fornara explained that the Student is a
sweet child who wants to succeed, but the program at Consolidated does not meet his needs.
While the special education teacher at Consolidated has a large caseload, and cannot drop
everything and deal with problems that arise, the teacher at KES can, as she only has 8-12
students on a caseload. [Id.]
35. Susan Richardson, the Students occupational therapist, initially worked with the Student
once per week in class and once outside of class. Partway through the year, she asked to stop
working in the classroom because the Student would refuse to work with her because, in his
words, You are not my teacher. [Testimony of S. Richardson] He was very productive in
her room, however. He also had difficulty with transitions, initially not wanting to leave the
classroom, then not wanting to leave the OT setting. She observed him having difficulty with
multistep instructions, taking things away from other students, and leaving the classroom
when he should not because he was done. [Id.] Ms. Richardson does not think the Students
current arrangement provides the Student with enough support, and that he would do much
better with the more structured approach in Ms. Caseys program.
IV.
DISCUSSION AND CONCLUSIONS
A. Brief summary of the position of the Parent: The District committed fatal
procedural errors in the formulation of the Students IEP and placement offers by not evaluating
the Student in all areas of suspected disability, and not properly evaluating and addressing the
Students behavioral needs. Although the District was well aware of the Students receptive and
expressive language issues, and viewed him as a behavior problem, there was no excuse for the
Districts completely omitting any testing of the Students speech-language skills, how these
difficulties may affect the Students behavior, or conducting an FBA as part of the Districts 2010
evaluation. The District also violated the IDEA by predetermining the Students placement in
developing its May 2010 IEP offer. Both IEP team meetings in the Spring of 2010 were infected
by a predetermination to place the Student at KES.
Neither is the Students proposed IEP substantively appropriate. It lacks a behavioral
support/intervention plan, which is a critical omission, given the role of the Students behaviors in
the Districts decision to place him at KES. There is also no evidence that the Student requires
the high degree of segregation from the mainstream called for in his IEP. This is not the least
restrictive environment, as required by law. The District has yet to attempt any of the following,
which could allow the Student to be successful in a less restrictive program: a proper FBA, proper
development and implementation of a BIP, enhanced services and accommodations to improve
the Students receptive language and auditory processing skills, use of professional behavioral
consultation services, and staff training in behavioral techniques, among other things. Third,
there are inadequate speech/language goals and services. The hearing officer should vacate the
IEP and placement offered for xx grade, and order the team to reformulate the IEP with

258

appropriate supplementary aids and services to be implemented in a supported mainstream setting

at Consolidated.
The District has also engaged in retaliatory actions against the Parent and Student for
filing a due process complaint. They have done this to make the Students placement at
Consolidated untenable and undesirable by preventing the Parent from communicating directly
with the Students teachers.
B. Brief summary of the position of the District:
The hearing officer should not set aside an IEP based upon procedural violations absent a
rational basis to believe these inadequacies compromised the Students right to an appropriate
education or caused a deprivation of educational benefits. With respect to the issue of whether the
Student had a proper evaluation, the Parent abandoned this issue at hearing, and they failed to
produce any evidence to support this allegation.
The self-contained program at KES is the right placement for the Student. The Students
low cognitive abilities, significant behavioral challenges and attention issues require a wellstructured, intensive program with mainstreaming opportunities and a team approach, which is
what KES offers. This conclusion is supported by his performance last year at Consolidated,
where he made no improvement in his behavioral management, despite a valiant effort by all of
the staff with whom he worked. Virtually all of the students in the resource room were there for
academic needs, rather than behavioral ones. This setting serves many students, and does not
give the Student the individual attention he needs. The Parents response that the District could
have done more would merely result in a re-creation of the KES program at Consolidated, which
the law does not require. The Students 2010-2011 IEP and placement are reasonably calculated
to provide him with educational benefits in the least restrictive environment, and the hearing
officer should uphold this determination.
The hearing officer has no jurisdiction to determine the Parents claim of retaliation. In
any event, this claim was baseless, as there was no evidence that the District had anything to do
with Ms. Peskurichs decision to file for a protection from harassment order against the Parent.
Principal Crandalls decision to have the Parents concerns come through him was not made to
punish the Parent for filing her due process complaint, which occurred at least a month earlier,
but to help manage a situation in which the Parent was making the staff feel very uncomfortable.
1. Did the District commit procedural violations in the formulation of the Students 20102011 IEP and placement offer by predetermining his placement prior to development of his
IEP at the team meeting on May 13, 2010, and/or by failing to evaluate the Student in all
areas of suspected disability in connection with this determination?
A. Evaluations
Procedural violations in the IEP process may undermine the integrity of an IEP and thus
be a violation of FAPE if there is some rational basis to believe that procedural inadequacies
compromised the pupils right to an appropriate education, seriously hampered the parents
opportunity to participate in the formulation process, or caused a deprivation of educational
benefits. Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994 (1st Cir. 1990) A procedural
fault rises to this level when a school fails to conduct proper assessments and consequently
provides inadequate services. Dracut Sch. Comm. v. Bureau of Special Education Appeals, 110

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LRP 50313 (D. MA. 2010) citing N.B. v. Hellgate Elementary Sch. Dist., 541 F.3d 1202 (9th Cir.
2008)(Failure to diagnose student with autism prevented IEP team from developing plan
reasonably calculated to provide educational benefit). On the other hand, the failure to put a
behavior intervention plan (BIP) into writing and attach it to a students IEP does not constitute a
FAPE violation, as long as the BIP was implemented. School Bd. of Indep. Sch. Dist. No. 11 v.
Renollett by Renollett, 440 F.3d 1007 (8th Cir. 2006)
Both Maine and Federal regulations require that a child be evaluated in all areas of
suspected disability, including hearing, social, and emotional status, general intelligence,
academic performance, communicative status and motor abilities. Maine Unified Special
Education Regulation (MUSER) V(2)(C)(4); 34 CFR 300.304(c)(4). At the January 25, 2010
IEP team meeting, the team proposed evaluating the Student in the areas of academic
development, intellectual abilities, and a formal classroom observation to gain a better
understanding of the Students abilities. [S-88] Although the testing included the completion of
behavior rating scales, and behavioral observations, no functional behavioral assessment has ever
been done. Additionally, although it was noted in the psychological evaluation that the Student
had speech problems, there was no specific evaluation of his speech and language needs or
abilities. [S-60]
Reevaluations are just as important as initial evaluations under the IDEA, but the law
does not require that every time a school does an evaluation of an eligible student that is not a
triennial evaluation, it must do a complete one in all areas of suspected disability. Schools
commonly retest in specific areas when needed. On the other hand, given the Students
difficulties with language and the fact that his behaviors were a major impediment to his learning,
it is unclear why the District did not evaluate him in those areas. The Students behaviors even
made it difficult to obtain accurate WISC-IV and CMS test results.
The IDEA requires the IEP team, in the case of a child whose behavior impedes the
childs learning or that of others, consider the use of positive behavioral interventions and
supports, and other strategies, to address that behavior. 20 USC 1414(d)(3)(B)(i). The
regulations state that a school district must consider a students need for a BIP under these
circumstances. 34 CFR 300.324(a)(2)(i). OSEP has stated that a district's obligation to consider a
BIP for a student whose behavior impedes his own learning or the learning of others exists
regardless of whether the district has contemplated disciplinary action for the student's behavior.
Letter to Shows 33 IDELR 223 (OSERS 2000).
A method often used for evaluating student behaviors to develop a BIP is the functional
behavioral assessment. FBAs are usually done in association with the removal of a student from
school for behavioral reasons, and the IDEA only requires them in connection with serious
disciplinary matters. See 34 CFR 300.530(f). This does not mean, however, that a school
department cannot choose to use FBAs in situations like this one. The general purpose of an FBA
is to provide the IEP team with additional information, analysis, and strategies for dealing with
problem behaviors, especially when they interfere with a child's education. Independent Sch. Dist.
No. 2310, 29 IDELR 330 (SEA MN 1998). In its comments, the Department of Education
emphasized that the IDEA took a proactive approach to behavior issues, stating,
as a matter of practice, it makes a great deal of sense to attend to behavior of children
with disabilities that is interfering with their education or that of others, so that the
behavior can be addressed, even when that behavior will not result in a change of

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placement. In fact, the Act emphasizes a proactive approach to behaviors that interfere
with learning by requiring that, for children with disabilities whose behavior impedes
their learning or that of others, the IEP Team consider, as appropriate, and address in the
child's IEP, 'the use of positive behavioral interventions, and other strategies to address
the behavior.' . . . This provision should ensure that children who need behavior
intervention plans to succeed in school receive them.
71 Fed. Reg. 46721 (2006).
Although there is no single prescribed method for conducting an FBA, MUSER defines it
as including: direct assessments, indirect assessments and data analysis designed to assist
the IEP Team to identify and define the problem behavior in concrete terms, identify the
contextual factors (including affective and cognitive factors) that contribute to the
behavior, and formulate a hypothesis regarding the general conditions under which a
behavior usually occurs and the probable consequences that maintain the behavior.
Formal documentation of the assessment by appropriately qualified individuals becomes
part of the childs educational record and is provided to the IEP Team.
Although Ms. Peskurich and Dr. Wojcik created a behavior plan that sought to assist the
Student with his behavioral difficulties, it was not done by a behavioral expert, with the
thoroughness required of an FBA, or even with any direct involvement from the IEP team.28
Although the plan had many interventions, it was treated in such an informal way that it was not
shared with the rest of the IEP team, including the Parent, who had no knowledge of its existence,
or with the classroom teacher. During the April 29, 2010 IEP meeting, the Parent asked for a
written BIP and more behavior supports, and she had requested an FBA previously. [Fact #17]
There was no explanation why no one told the Parent of the existence of Ms. Peskurichs plan at
that time. At the hearing, this plan was something of a mystery to everyone other than its creators.
The District clearly felt that the Students behaviors were sufficiently serious that he
needed to be placed in a self-contained behavioral program. Yet the IEP team never ordered an
FBA, nor did it take a formal look at the Students behaviors, and agree to a plan for addressing
these behaviors. Consequently, we do not know whether the Student would have experienced a
greater degree of success in his educational program, if he had had the benefit of a BIP developed
in accordance with the IDEA law and rules. This is the sort of procedural defect that, in a case
like this one, could compromise the Students right to an appropriate education, and is therefore a
violation of the IDEA.
It is unclear why the District did not evaluate the Students speech and language progress,
but given Ms. Einsiedlers work with the Student, this does not seem to have resulted in a
28

In Letter to Janssen, 51 IDELR 253 (OSERS 2008), OSERS states that there is no requirement
that a board-certified behavior analyst, or any other specific individual, conduct an FBA unless
state law requires it. Although the IDEA does not state who may conduct FBAs, districts must
ensure that those who do conduct them are adequately trained. Although Dr. Wojcik testified that
he has conducted an FBA or two for another district, and went to a workshop where FBAs are
discussed, he was not a behavior specialist, and Ms. Peskurich had no experience in this area.
[Testimony of J. Wojcik, C. Peskurich]

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deprivation of educational services. Nonetheless, to avoid an IDEA violation, it would be wise for
the IEP team to meet to revisit the Students speech and language goals to reflect the work Ms.
Einsiedler is doing with the Student.
The fact that Dr. Fagan diagnosed the Student with an auditory processing disorder,
however, does not indicate that the District violated the IDEA by failing to evaluate for this. I
share Ms. Einsiedlers concerns about the appropriateness of Dr. Fagans evaluation and
diagnosis29, and note that neither Dr. Slap-Shelton nor Dr. Burgess recognized this potential issue
when doing the PEDS evaluation. The District should continue to monitor the Students auditory
processing difficulties, and have appropriate evaluations done by qualified professionals in
accordance with professional standards and Maine law so that his educational program can
address his needs in this area.
B. Predetermination of Placement
The Parent alleges that the District developed the May 2010 IEP based upon a
predetermined placement, rather than focusing on the Students individual needs.
Predetermination is a procedural violation of the IDEA, and can deprive a child of a FAPE where
the parents are effectively deprived of meaningful participation in the IEP process. Deal v.
Hamilton Co. Bd. Of Education, 392 F.3d 840, 855 (6th Cir. 2004) Predetermination is not,
however, synonymous with preparation or with stating an opinion. Federal law "prohibits a
completed IEP from being presented at the IEP Team meeting or being otherwise forced on the
parents, but states that school evaluators may prepare reports and come with pre-formed opinions
regarding the best course of action for the child as long as they are willing to listen to the parents
and parents have the opportunity to make objections and suggestions." N.L. ex rel. Mrs. C. v.
Knox County Sch., 315 F.3d 688, 694 96th Cir. 2003); see also 34 C.F.R. 300, App. A, No. 32.
Participation must be more than mere form, it must be meaningful." Deal, 392 F.3d at 858
(emphasis original).
I cannot conclude that the Parent was deprived of meaningful participation in determining
the Students placement. When the Students transition to the District was first considered, some
District employees felt that the Student would do better in the KES program, but they listened to
the Parents concerns and decided to give the Student an opportunity to be in the less restrictive
program at Consolidated, which was the Parents choice. By the April 2010 IEP team meeting,
all members of the team agreed that the Students program was not working. Several team
members felt the Students needs would be better met at KES. They discussed the differences
29

Ms. Einsiedler testified that only an audiologist may make the actual diagnosis of APD.
The hearing officer takes official notice of Chapter 5 of the Code of Maine Regulations 02-296,
governing the practice of speech-language pathology and audiology, which only permit
audiologists to evaluate and manage children and adults with central auditory processing
disorders. This is the position held by ASHA, which explains that while various professionals,
including teachers, psychologists, and speech-language pathologists may investigate aspects of a
childs auditory processing difficulties, and professionals may actually use test tools that
incorporate the terms "auditory processing" or "auditory perception" in their evaluation, or may
even suggest that a child exhibits an "auditory processing disorder," however valuable the
information from the multidisciplinary team is in understanding the child's overall areas of
strength and weakness, none of the tests used by these professionals are diagnostic tools for APD,
and the actual diagnosis of APD must be made by an audiologist.

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between the two programs, and the challenges the Student faced. Because the Parent disagreed
with the KES placement, the team decided to compile a list of the Students needs and meet again
for further discussion in a few weeks. The Parent agreed to observe the KES program.
At the second IEP team meeting, the team agreed on everything in the IEP except the
placement. After observing the Students struggles and lack of adequate progress at
Consolidated, staff members who had agreed to that placement a year earlier now felt the Student
needed a more structured setting. Simply because the parties held different views on this issue,
and ultimately came to a different decision than the Parent does not mean that there was a
predetermination in violation of the IDEA. The evidence shows that the Parent had meaningful
input in this process, and the District has shown its openness to consider different options. Other
changes were made at the Parents request, such as the elimination of social work services,
despite most of the team believing this would benefit the Student. Furthermore, there is a
difference between a predetermination and preparation. Here, Ms. Mulsow and Dr. Wojcik
considered the Students placement in preparation for the IEP team meeting. It is impossible for
team members to have a productive meeting if they arrive having given the Students
programming no thought in advance. There was no evidence that the other team members were
pressured to support this placement, and they all had thoughtful reasons for their decision. I
cannot conclude that the Districts conduct was a violation of the IDEA.
2. Are the IEP and placement for the 2010-2011 school year reasonably calculated to
provide the Student with a free appropriate public education in the least restrictive
environment?
Every student who is eligible for special education services is entitled under state and
federal law to receive a "free and appropriate public education ... designed to meet their unique
needs and prepare them for employment and independent living." 20 USC 1400(d)(1)(A). The
hearing officer must examine whether the Students educational program contained in his IEP
was reasonably calculated to enable the student to receive educational benefit. Board of Educ.
v. Rowley, 458 U.S. 176, 207 (1982). The First Circuit elaborated that the students educational
program must guarantee a reasonable probability of educational benefits with sufficient
supportive services at public expense. See G.D. v. Westmoreland School Dist., 930 F.2d 942,
948 (1st Cir. 1991). In Town of Burlington v. Department of Education, the First Circuit
explained that an appropriate education must be directed toward the achievement of effective
results demonstrable improvement in the educational and personal skills identified as special
needs as a consequence of implementing the proposed IEP. 736 F.2d 773, 788 (1st Cir. 1984),
affd, 471 U.S. 359 (1985). The educational benefit must be meaningful and real, not trivial or de
minimus in nature. As the First Circuit stated in Lenn v. Portland School Comm., the law 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 childs potential.

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998 F.2d 1083, 1086 (1st Cir. 1993).

The law is also clear that special education programming must be delivered in the least
restrictive environment. 20 U.S.C. 1412(a)(5); MUSER X (2)(B). What is least restrictive
depends upon an individuals needs. The goal is to educate the Student, whenever possible, with
nondisabled students, and as close as possible to the childs home. MUSER X(2)(B). The
regulations also state that the school must ensure that the child is educated in the school that he
or she would attend if nondisabled, unless the IEP necessitates a more restrictive placement. 34
CFR 300.116(c); MUSER X.2.B. The U.S. District Court in Maine, in Millay v. Surry,
recently cited the following standard,
The least restrictive environment is the one that, to the greatest extent possible,
satisfactorily educates disabled children together with children who are not disabled, in the
same school the disabled child would attend if the child were not disabled." Carlisle Area
Sch. v. Scott P., 62 F.3d 520, 535 (3d Cir. 1995). "Mainstreaming may not be ignored, even
to fulfill substantive educational criteria." Roland M. v. Concord Sch. Comm., 910 F.2d
983, 992-93 (1st Cir. 1990).
07-CV-178-B-W (Dec. 22, 2009), 109 LRP 79729. On the other hand, Parental preference alone
cannot be the basis for compelling school districts to provide a certain educational plan for a
handicapped child." Brougham v. Town of Yarmouth, 823 F. Supp. 9 (D. ME 1993).
Here, the Parent has felt very strongly since her first contact the District about the
Students transition to xx that the Student should remain in his neighborhood school and be
mainstreamed to the extent possible. The District, on the other hand, believes that such a plan
was attempted in the 2009-2010 school year, and all parties agree that this did not work.
Consequently, the District has proposed placing the child in a program for students with
behavioral problems that impede their ability to learn. This program is at KES, another school in
a neighboring town within the District, but is not the school the Student would attend if he were
not disabled.
The District introduced a wealth of evidence about the wonderful staff and programming
in Ms. Caseys self-contained program at KES, and of how this program would benefit the
Student. This program would help the Student manage his behaviors which are interfering with
his education. I would conclude that this program could provide the Student with FAPE, except
that I do not know whether this is the least restrictive setting in which the Student can be educated
because he has not been given a chance to achieve meaningful educational progress in the less
restrictive environment at Consolidated with the benefit of an FBA and a BIP drafted by the IEP
team for implementation there. This was the one significant step that the IEP team did not take.
For the reasons discussed above, this was a substantial omission in the IEP process in the spring
of 2010. Despite Ms. Peskurichs valiant efforts at implementing her behavior plan, she did not
have the expertise or training in this area needed to develop the type of plan that someone with
the Students behavioral issues required. To do this job properly, the Student needs a proper
behavioral assessment and BIP that should be developed by the IEP team with input from a
behavioral expert and implemented in both the mainstream and special education settings.
This does not mean that the District has to recreate the KES program at Consolidated.
The District cites a 2004 Maine hearing officer decision regarding a student in a rural school

264

district, in which the hearing officer held that the student was not likely to receive meaningful
benefit in a cobbled-together program in the rural town, noting the limited ability of the district
to create a new program to meet the agreed-upon needs of this student, particularly when it was
difficult to fill specialized positions. M.S.A.D. No. 37, 43 IDELR 133 (Me. SEA 2004). The
hearing officer cites a Fourth Circuit decision holding that the IDEA does not require a school
district to duplicate in the students neighborhood school a highly specialized education program
because the students neighborhood school is a few miles closer to his home than the school with
the specialized program. M.S.A.D. No. 37, citing Barnett v. Fairfax County Sch. Bd., 927 F.2d
146 (4th Cir. 1991).
If, after the District conducts the necessary behavioral assessment and determines the
types of supports needed by the Student, it is necessary to essentially recreate the KES program
for the Student to succeed at Consolidated, then the Student shall attend the program at KES. The
Students program is already considerably fragmented, and he has difficulty with transitions, so
further cobbling together of his program simply to keep him at Consolidated is not in his best
interest. If it appears that the Student may be successful at Consolidated with some changes that
do not go so far as to recreate the KES program, the District must provide that. While it remains
to be seen what the results of the behavioral assessment will be, I would like to provide some
guidance to the parties of which changes to the Students program at Consolidated would be
reasonable, and which would go too far. It would be reasonable to provide a one-to-one ed tech
with training in working with students with behavioral challenges, some consultation time with a
behavioral specialist, and accommodations of the Students auditory needs. More than that,
including hiring another special education teacher with skills like those of Ms. Casey, goes too
far, and if that degree of change is needed, the Student should be placed at KES.30 Once the BIP
is implemented, the District shall track the Students behaviors in accordance with the
recommendations of the behavioral specialist, using measurable goals, for a period of 90 days. If
the Student is making reasonable documented educational and behavioral progress during this
period, he shall remain at Consolidated. If not, then the Student cannot receive FAPE at
Consolidated at this time, and shall be placed at KES. The evidence supports a conclusion that
both his behavioral and educational needs can be met there.
Given the nature of this dispute, it is with some reluctance that I order additional
assessments and a subsequent reconsideration of the Students IEP by the IEP team, as I would
prefer to provide greater specificity to avoid the possibility of a further protracted dispute
between the parties. It is not in the Students best interest for the relationship between the Parent
and the Students teachers to be as poor as it is, and litigation does not improve this relationship.
3. Has the District engaged in adverse actions against the Student and Parent in retaliation
for filing this due process complaint?
Although the District argues that the hearing officer has no jurisdiction to hear the
Parents claim of retaliation, I agree that the case cited by the Parent, Hesling v. Avon Grove Sch.
30

There was also no evidence that the Student would do better with the other xx grade teacher at
Consolidated, who is his aunt. It is possible that the District specifically chose not to place the
Student in a relatives class, as school districts sometimes avoid doing so. In any event, staffing
choices, including the Students mainstream classroom teacher, are District decisions.

265

Dist., 47 IDELR 256 and its progeny31, among other cases, support the Parents right to bring a
retaliation complaint under the IDEA. I do not, however, believe that the Parent has produced
evidence showing that the District has retaliated against her for filing her due process complaint.
The evidence at the hearing demonstrated that Ms. Peskurich acted purely of her own
volition in deciding to go to the Kennebunkport Police Department and seek a protection from
harassment order against the Parent. There was no evidence that any school official prompted or
in any way encouraged her to do this. The Parents conduct on September 10 was simply the
proverbial straw that broke the camels back. The Parents allegations of retaliation were merely
speculation on her part unsupported by factual evidence.
Principal Crandalls decision to have all communication between the Parent and the
Students teachers go through him appears to have been based, not upon the Parents exercising
her rights under the IDEA, but because the Parents conduct was disruptive to the classroom,
intimidating to the Students teachers32, and because she had conversations in front of students
and staff that should be kept in private. [Facts #28 & 29] While I understand the Parents
concerns about the effect of the principals decision, this is a matter to be resolved between the
principal and Parent, but at this point, does not implicate the Parents due process rights.
4. If the hearing officer finds a violation of any of the above, what remedies are
appropriate?
I cannot conclude that the IEP and placement resulting from the May 13, 2010 IEP
meeting educates the Student in the least restrictive setting for the reasons set forth above. The
District is ordered to take remedial action set forth in section V below.
V.
ORDER
After consideration of the evidence presented during this due process hearing, the hearing
officer orders as follows:
1. The May 13, 2010 is hereby vacated, and the stay-put IEP shall remain in place until
such changes are made in accordance with this order, as set forth below.
2. The District shall obtain a functional behavioral assessment conducted by a Board
Certified Behavior Analyst or similarly qualified professional as soon as possible, but no later
than 45 days from the date of this decision. Upon receipt of the FBA report, the IEP team shall
meet and draft a behavior intervention plan, which shall be added to the Students IEP. This plan
shall be implemented at Consolidated, assuming this can be done by making reasonable but
limited changes to the Students stay-put program, as set forth above, such as hiring an
educational technician with experience or training (which the District can provide, if necessary)
in working with students with behavioral problems. Once the BIP is implemented, the District
shall track the Students behaviors in accordance with the recommendations of the behavioral
specialist, using measurable goals, for a period of 90 days. If the Student makes reasonable
31

286 F.Appx 773 (3rd Cir. 2008), 54 IDELR 284 (ED PA June 30, 2010.
This does not mean that the Parent was trying to intimidate the Students teachers, but she had
that affect upon Ms. Peskurich at the very least. The Parent was trying to be a good advocate for
her sons educational needs, but apparently this was a very emotional issue for both her and the
special education teacher, with unfortunate results.
32

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documented progress in both his behavioral and educational goals during this period, he shall
remain at Consolidated. If not, then he shall transfer to the behavioral program at KES.

__________________________
SHARI B. BRODER. ESQ.
Hearing Officer

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State of Maine
Special Education Due Process Hearing Decision
December 10, 2004
Parent v. SAD #37, Case No. 04.141H
REPRESENTING THE PARENT:
REPRESENTING THE SCHOOL:
HEARING OFFICER:

Chad Hansen, Esq.

Disability Rights Center
Eric Herlan, Esq.
Drummond Woodsum & MacMahon
Carol B. Lenna

This hearing was held and the decision written pursuant to Title 20-A, MRSA, 7207-B
et seq., and 20 USC 1415 et seq., and accompanying regulations.
The mother, resident of Maine School Administrative District #37, brings this case on behalf of
her son, whose date of birth is xx/xx/xxxx. The student is eligible for special education services
as a student with an emotional disability. The parent filed a request for due process on October
15, 2004. She seeks resolution regarding the appropriate placement for the student.
In preparation for the hearing, the parties met in a prehearing conference via telephone on
Monday, November 1, 2004. At the prehearing, the parties disagreed about the students stay
put placement during the pendency of the due process proceeding. The parties provided written
arguments on this issue to the hearing officer on November 3. In a follow-up telephone
conference with the parties on November 4, the hearing officer issued an oral decision that the
tutoring program was to be the stay put program based on the conclusion that the parties had
agreed otherwise that the student requires two hours of tutoring a day in a separate setting to
meet his needs.
Documents and witness lists were exchanged by mail. The hearing convened on November 9 and
November 10. The parties jointly introduced 90 documents (242 pages) which are labeled
exhibits in the body of the decision. The parent introduced four additional documents (9 pages)
which are labeled parent exhibits. Eleven witnesses gave testimony.
At the conclusion of the hearing, the parties were given until November 19 to submit final written
arguments. In addition, the hearing officer instructed the district to provide a report of tutoring
sessions from September 18, 2004 through November 29, 2004. The record remained open until
November 29, 2004 for the receipt of that report.
..
Closing arguments were received on November 24, 2004. No additional evidence was entered
into the report except the requested tutoring calendar.

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Following is the decision in this matter.

I. Preliminary Statement
The student enrolled in the district on September 16, 2004, as a transfer student with an existing
IEP. That IEP placed him in a special education program described as a public school, selfcontained classroom for students with emotional disabilities, with one-on-one instruction. There
is no comparable classroom in the district. The district convened a PET on September 17, 2004.
The minutes of the meeting state that the team agreed that the student will receive tutoring two
hours a day in a separate setting. The tutoring began on October 15, 2004.
The parent argues that the district has failed to offer and provide the student with a free
appropriate public education in the least restrictive educational alternative since his enrollment in
the district. They seek compensation for this alleged failure. In addition, they argue that the
tutoring should not be considered the stay-put placement during the pendency of the due process
proceeding because it is not the last agreed upon appropriate placement to meet his special
education needs. The parent contends that she did not agree with the PET minutes which stated
there was agreement, and has asked that the minutes be amended to reflect this disagreement.
The district does not defend tutoring as the appropriate long-term placement for the student, but
argues that the placement sought by the parent was not available in the district. Ten hours of
tutoring per week was determined by the PET as a short term solution until further placements
could be explored. They argue that tutoring was the last agreed upon placement between the
district and the parent, and thus is the stay-put placement for the duration of this proceeding.
The district now offers placement at KidsPeace, a local day treatment facility for students with
emotional disabilities.
II. Issues
1.
2.
3.

What is the students stay put placement during the pendency of the
administrative or judicial proceeding?
Has the students program since October 15, 2004, tutoring in a separate setting,
provided the student a free appropriate public education? If not, what, if any,
remedy is he entitled to receive?
Does the districts offer at the October 29, 2004 PET--to implement the students
IEP in the KidsPeace day treatment program--provide him with a free appropriate
pubic [sic] education? If not, what is the appropriate program in which he will
receive FAPE?

III. Findings of Fact

1. The student is xx years, xx months old (DOB xx/xx/xxxx). He is eligible for special
education services as a student with an emotional disability. He is diagnosed with
Attention Deficit Hyperactivity Disorder, for which he takes Ritalin and Clonidine. He
and his mother currently reside in SAD 37, having moved there in September 2004.
(Dispute Resolution Request Form; Testimony Parent)

269

2. The student has attended as many as 14 different schools in a number of states since he
entered school in 1997. The student has always received special education and
supportive services within the public school, in a range of restrictive settings. (Exhibit
47, 82, 93, 125, 127, 128, 140, 149, 192, 217, 227, 230; Testimony Parent)
3. When the parent enrolled the student in the district on September 16, 2004, she presented
the students educational records to the principal. There are gaps in the students
cumulative record based on that file. (Testimony Sawyer, Hodgkins, Parent)
4. While the student was in xx grade, his mother referred him for a special education
evaluation, which was conducted in September 1998. The resulting evaluation document
notes that the student achieved a standard score of 104 in General Conceptual Ability as
measured by the Differential Ability Scales (DAS), and that he exhibited clinically
significant T-scores in Hyperactivity, Aggression, Conduct Problems, Anxiety,
Depression [sic] Withdrawal and Adaptability on the Behavior Assessment System for
Children Rating Scale (BASC) 33. There is no documentation of an IEP team discussion
of this evaluation, but by February 1999 the first IEP in the record shows that he was
considered a student with an emotional disability34 and a specific learning disability. All
IEP documents included in the record after that date identify him as a student with an
emotional disability only. (Exhibit 67, 85, 96, 130,142, 158, 172, 192, 218, 227, 230232)
5. A report, from a North Carolina Mental Health Center dated September 2000, states that
the student received mental health services [in Ohio as well as Wisconsin] for a variety
of symptoms including hyperactivity, defiance, physical aggression, poor impulse control
and suspected depression [H]e was suspended frequently in other state schools he
attended He is often isolated from others, becomes easily agitated by others, feels that
others do not like him and try to harm him Diagnoses that mom reported include:
Oppositional Defiant Disorder; Conduct Disorder, ADHD, Dyslexic, Depressive Disorder
and Learning Disabled. A follow-up report by the staff psychiatrist in October 2000
notes that the student has been having disruptive behavior and increased activity both at
school and at home He also reports that he has been seeing shadows and hearing a
voice telling him to do certain things. The psychiatrist reports diagnoses of Attention
Deficit Hyperactivity Disorder and Psychotic Disorder, NOS. A report of a follow-up
visit, dictated by the same psychiatrist in November 2000, states that the student
confessed to his mother that he made up a story about having hallucinations. (Exhibit
185, 187, 189-190)
6. A school-based evaluation was conducted in North Carolina by Valery Davis, MA,
CAS35 in December 2000 when the student was in xx grade. Using projective techniques,
33

The report is obviously incomplete, with page one ending mid-sentence and not picking up
again on the next page.
34
The actual term used in this report is emotionally handicapped. The term used to describe
the student varies from document to document, depending on the state, but in all cases identifies a
student with an emotional disturbance as described in IDEA [34 CFR 300.7(4)], or the Maine
equivalent of a student with an emotional disability. [Chapter 101, 3.5] For the purposes of
this decision the term emotional disability is used throughout.
35
Certificate of Advanced Study.

270

sentence completion techniques, clinical interview and observations, the evaluator

concluded that the student demonstrated a significant number of emotional indicators,
which suggest significant emotional distress. She recommended outside counseling
services to address family-based issues. School documents from that period indicate the
student was placed in a self-contained class for students with emotional disabilities.
(Exhibit 192, 197-200, 201)
7. A partial IEP, dated October 2001, during the students xx grade year, notes that the
student is being placed in a separate special education setting. (Exhibit 173)
8. A psycho-educational evaluation was conducted in January 2002 by Richard Perry, Ph.D.
while the student resided in Wyoming.36 Results of the Wechsler Intelligence Scale for
Children 3rd Edition (WISC-III) show the student obtained scores in the average range
with a Full Scale IQ. score of 101. Scores obtained on the Woodcock Johnson III (WJ
III) were generally in the average range with the exception of Written Expression, which
was 17 points below his expected achievement. Further evaluation in this area was
suggested. The evaluator concluded that the student appears to have appropriate
diagnoses of Attention-Deficit/Hyperactivity Disorder and Oppositional Defiant
Disorder It does appear that [the students] emotional difficulty interferes with his
ability to function in the classroom setting and interferes with his ability to perform
academic tasks. (Exhibit 165-169)
9. An IEP from a North Carolina school district, dated February 2002, placed the student in
a separate special education classroom and notes that the student has difficulty with
grade level material and controlling behavior. (Exhibit 163)
10. An IEP from a Michigan school district, dated May 2002, placed the student in a selfcontained classroom for students with emotional disabilities with a behavior plan
through the social skills training program. (Exhibit 141-146)
11. An IEP from a different Michigan school district, dated November 2002, placed the
student in a self-contained classroom for students with an emotional disability (6.5 hours
per day), with a behavior plan and one hour per month of social work services. (Exhibit
129-135)
12. An attendance sheet shows that the student attended a school in Kentucky from February
6, 2003 until February 26, 2003. No other documents from this placement appear in the
record. (Exhibit 127)
13. Notes from a special education transfer student review meeting in Hinsdale, Montana,
dated March 19, 2003, stated that the student would be placed in the resource room for
most subjects, with reading in the regular classroom. No other documents from this
placement appear in the record. (Exhibit 126)
36

This evaluation also is missing information as it skips from page 1 to page 3. Based on the
assessment techniques listed by the evaluator, Page 2 seems to address the current mental status
examination.

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14. In September 2003 the student began school in the West Des Moines, Iowa, Community
Schools. He was placed full-time in a self-contained, social skills program for students
with emotional disabilities, which was in the district but not in his neighborhood school.
A functional behavioral assessment conducted in conjunction with this placement
concluded that the behaviors of greatest concern were story telling, telling untruths, and
difficulty accepting consequences in a [sic] appropriate way. These were considered to
be attention-seeking behaviors. His behavioral support plan addressed appropriate peer
and adult interaction and accepting consequences and redirection appropriately using
a social skills class daily for at least 30 minutes. Progress data from this period indicates
limited progress toward meeting stated goals. His teacher testified that the student fit into
her class, but that he did not do well when in the general school environment. She felt he
needed additional support and supported his referral to a local practitioner for therapy.
After approximately two months in the program, the student left the district on November
6, 2003. (Exhibit 97, 107, 110-124; Testimony Fritz)
15. The school record picks up again on April 1, 2004 after the student transferred into the
Broadview School District, Broadview, Montana. While in this district, the students IEP
placed him in a combination resource and regular classroom. The behavior goal in the
IEP states that, In the short time that [the student] has been here he has been involved in
several conflicts with students. He is a disruptive member of any classroom with his
constant complaints and demands. In addition to his academic support, the program
included counseling services for 30 minutes per week. His counselor throughout this
period, Mr. Charles Rambo, stated that the student came to his office when he needed to
leave the classroom, often one to three times per day several times a week, in addition to
their scheduled weekly session. He described the student as depressed, hyper-vigilant,
and taken to flights of fancy during those sessions. He provided instruction in the use
of journaling techniques and behavior management strategies as part of the program.
The student remained in this placement for 29 school days, leaving the district before the
end of the school year. There is no progress data from this period, although Mr. Rambo
testified that he felt the student did show a better ability to handle social situations.
(Exhibits 84-92; Testimony Rambo, Parent)
16. The parent signed a notice of intent to conduct an evaluation while the student was in
the Broadview School District. There is no evidence that this evaluation was conducted.
The students counselor stated he did not conduct an evaluation of the student during the
students tenure at Broadview, His diagnostic impression of the student was that he
suffered from dsythymia, adjustment disorder and attachment disorder. (Exhibit 83;
Testimony Rambo)
17. The student began the current school year on August 9, 2004 in the xx grade at Smyrna
Elementary School in Carteret County Schools, North Carolina. The IEP team met on
August 11, 2004. On that date, the team developed an IEP that placed the student in a
combination regular and resource room setting. Also on that date, the parent signed a
consent for evaluation form. Soon after school began, a shadow was assigned to be
with the student through out the school day. After multiple disciplinary actions, which
were increasing in frequency and intensity, the IEP team met to consider a program
change. (Exhibit 67, 78, 79; Testimony Dietzler)

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18. On August 25, 2004, the team amended the IEP and placed the student in a self-contained
classroom for students with an emotional disability, with one-on-one instruction and
restricted access to non-disabled peers. This decision was driven by behavioral events
that were becoming more frequent and more intense. The team intended this program to
be an interim placement until the evaluation was completed. The principal stated that
there was concern among school staff that the district was not meeting the students
needs, and that he required a different type of program. (Exhibit 67, 76; Testimony
Dietzler, Armistead)
19. The Carteret County school psychologist, Ms. Carolyn Armistead, MA, CAS, conducted
a psychological and academic evaluation on August 18 and 25, 2004. The evaluation
consisted of an extensive records review, a social/developmental history with the mother
as reporter, administration of behavior rating scales with the students teachers and his
mother as reporters, and administration of individual standardized psychological and
educational tests. In addition, she made behavioral observations based on her interview
with the student during one of his outburst incidents at school.
Tests administered were: Woodcock-Johnson Tests of Cognitive Abilities - III,
Woodcock-Johnson Tests of Achievement III, Bender Visual Motor Gestalt
Test, Achenbach Youth Self Report, Adolescent Symptom Inventory 4 (ASI-4),
Attention Deficit Disorder Evaluation Scale, Emotional and Behavioral
Evaluation Scale 2 (EBPS-2), and Projective Testing using House-Tree-Person,
Kinetic Family and Thematic Apperception Test.
Results from cognitive testing led the evaluator to determine that the student
posses a General Intellectual Ability range of 103 to 112. His overall cognitive
abilities are in the average to above average range, with Fluid Reasoning being a
relative strength and Short-Term Memory a relative weakness. Results of
achievement testing show that he has average to superior reading skills, low
average to average math skills, and very low to low average written expression
skills.
Information from behavioral/emotional testing led the evaluator to report that the student
has an extremely poor self-concept and significant feelings of inadequacy about
himself. He tends to be overly sensitive to his environment and events that occur. [He]
has developed a suspicious, hostile and defensive attitude and expects life to be against
him. . . In addition, there was overwhelming evidence in the [projective] drawings that
[he] uses fantasy to escape the stress of everyday life. Symptoms of dsythymia, traits
of possible obsessive tendencies (inability to get distressing thoughts off his mind) and
excessive vocal noises were noted by teacher reports on the ASI-4. The EBPS-2 scale
indicated that teachers saw significant problems in the areas of interpersonal relations,
and inappropriate behavior, and significant amounts of unhappiness/depression. She
concluded that the students poor impulse control and hyperactivity likely meant he did
not develop the early skills of sharing and turn taking and that socially acceptable
socialization skills and how to read body languagedid not develop even after
medication was used to help control his activity and impulsive nature. . . [T]hus,

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through the years he continued to have discipline difficulties without the guidance
needed to develop more appropriate skills. . . As a result, [the student] has developed a
suspicious, hostile, and defensive attitude that has become routine, occurring
automatically without any forethought.
The report recommends that, Behaviorally and emotionally, [the student] will perform
better in an environment in which he feels safe and nurturing [sic], one that is consistent
and structured and one that is supervised well. He appears ill equipped at this time to
deal with the social demands of the middle school program. . . [He] could benefit from
specific instruction in social skills; a daily basis would be most beneficial. . .To also aid
[the student] in understanding his impact on others and his world, role reversals could be
used in a therapeutic sessions (sic) where an adult takes his role and he takes the
teachers role or administrators role. Role reversals may be useable in social skills
teaching sessions, as well, provided an emotionally safe situation with the other peers is
present. (Exhibit 78, 47-63; Testimony Armistead)
20. The student left the district before the evaluation report was shared with the parents and
the IEP team. Ms. Armistead stated that, had the team met to discuss the evaluation, she
would have recommended that the student be placed in a highly structured, wellsupervised program that would provide academic instruction to address achievement
deficits and daily social skills training to assist him to deal with his emotions
appropriately with an ability to practice these actions in safe role-play. She stated that the
staffing should include a teacher who has experience working with students with similar
problems as this student, as well as counseling support. She described a physical set-up
that included a separate space for the student to decompress when necessary. Finally,
she stated that therapy, focused on the family and the students strengths within the
family, should be part of the program. She would not have recommended that the student
return to a mainstream setting in the short term, but rather that this become the long-term
goal. (Testimony Armistead)
21. The student transferred into SAD 37 on September 16, 2004 with the IEP from North
Carolina. This IEP described a placement that did not exist in SAD 37. Susan Hodgkins,
director of special education for SAD 37; John Sawyer, Principal of the Cherryfield
Elementary School; and Stephen Young, special education teacher in the Cherryfield
school each spoke with personnel from North Carolina to inquire about the student and
his program there. A copy of the recent evaluation was faxed to the school that day, as
well. (Exhibit 45, 46, 67-72; Testimony Armistead, Dietzler, Hodgkins, Young, Sawyer)
22. SAD 37 convened the PET on September 17, 2004 to discuss program options for the
student. Ms. Hodgkins reviewed the recent evaluation with the parent37 and the team.
After a discussion of the evaluation and the students previous placement in North
Carolina, it was decided that the student would receive tutoring two hours per day in a
location separate from the elementary school. The minutes of the meeting were written
during the meeting and were handed to the parent at the conclusion of the meeting. The
minutes state that, The Team agreed that the student requires two hours of tutoring a day
37

This was the first time the parent had seen the evaluation report.

274

in a separate setting to meet his needs. No disagreement of this decision was voiced at
the meeting or in the subsequent three weeks. (Exhibit 39; Testimony Hodgkins,
Sawyer)
23. On October 12, 2004, Ms. Hodgkins and the parent agreed that a follow-up PET would
convene on October 19. Representatives of the KidsPeace program were invited to come
and explain their programs. (Exhibit 29, Testimony Hodgkin)
24. Unable to locate staff, the district did not start the students tutoring program until
October 14, 2004. There were six days between October 14 and December 1 when no
tutoring was offered, although tutoring was offered on three days when school was not in
session. (Exhibit 234-235; Testimony Parent, Hodgkins, Tenney)
25. The parent requested a due processing hearing on October 15, 2004. (Dispute Resolution
Request Form)
26. At parent request, through her attorney, the district cancelled the October 19 PET
meeting and rescheduled it to convene on October 29, 2004. The invitation for
KidsPeace staff to attend the meeting was rescinded, also at the parents request.
(Testimony Hodgkins)
27. A letter from the parents attorney, dated October 20, 2004, alerted the district that the
parent was in disagreement with the determination stated in the September 17, 2004 PET
minutes, and that she wished to have the minutes amended to reflect that she did not
agree to limit the students education to tutoring outside of school. (Exhibit 8)
28. The PET convened on October 29, 2004. A new IEP was drafted. Special education
services included full-time special education placement in a separate day school,
counseling one hour per week, social work services up to two hours per week, and
consultation (undefined) four hours a month. The three annual goals described
instructional objectives to assist the student to 1). develop coping skills and behavior
strategies; 2). improve reading skills; and 3). improve math skills. The district proposed
that this IEP be implemented in the KidsPeace day treatment program. There was no
disagreement over the goals and objectives stated in the IEP, but the parent rejected the
placement offer. (Exhibit A1-A4, A-5; Testimony Hodgkins, Parent)
29. The KidsPeace day treatment program is located in Ellsworth, Maine, approximately 3545 minutes from the students neighborhood school. It offers educational, psychosocial
and psychiatric services for 55 adolescent students, aged xx-xx, who live in Washington
and Hancock County [sic]. There are currently two xx -xx grade groups, each consisting
of approximately 12 students, grouped according to academic level. Classrooms are
highly structured, [sic] staffed with a special education teacher and an educational
technician. In addition, the program includes a full-time psychologist, psychiatrist and
social worker. Social skills training and appropriate response to emotional situations is
[sic] a focus of the program throughout the day. Depending on the students individual
plan, individual and family therapy is available. The population of students currently in
the program varies, but includes students who carry a diagnosis of conduct disorder,

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dysthymia/depression, attentional disorders, adjustment disorders, oppositional defiant

disorders, and mood disorders.
Acceptance into the program is determined by a
probability that the student will benefit from a structured therapeutic setting in order to
achieve academic success, not a specific diagnosis. SAD 37 currently has two students
placed at KidsPeace. (Testimony Novatnak, Hodgkins)
IV. Conclusions
What is the students stay put placement during the pendency of the due process
proceeding?
"During the pendency of any administrative or judicial proceeding. . .unless the State or local
[educational] agency and the parents of the child agree otherwise, the child involved in the
complaint must remain in his or her current educational placement of such child [sic]. 34 CFR
300.514 This provision, known as the "stay put" provision, describes the status of a students
placement under the Individuals with Disabilities Education Act (IDEA) during a due process
action and any appeal to that action.
Since the parties in this dispute were unable to reach consensus about the stay put placement for
the student, the parties agreed that the hearing officer would issue a ruling on this question. The
attorneys submitted written arguments to the hearing officer, and then were convened by
telephone conference. After consideration, the hearing officer notified the parties that the stay put
placement for the student during the pendency of the hearing was the then-current tutoring
program, concluding that the local educational agency and the parents otherwise agree[d] to
this placement.
The presumption in law is that, when the parties enter due process, a student will remain in the
placement described in his or her most recent IEP, the then-current placement. However, when
this student arrived in SAD 37, his most recent IEP described a program that did not, and does
not, exist in the district. Consequently, the PET convened on September 17, 2004 (within two
days of his enrollment), to consider program options. Records available to the PET at that time
indicated that the students previous district considered his needs to be significant. The PET
deliberated, and made a determination that tutoring services would best meet the needs of the
student until the PET could gather additional information and reconvene to determine the
placement that best met the needs of the student.
The parent was a full participant in the PET meeting on September 17. She participated in the
discussion and the determination that the Team agreed that the student requires two hours of
tutoring a day in a separate setting to meet his needs. The parent received the minutes, which
clearly stated this determination, before she left the meeting that day. She did not give notice
that she disagreed with this determination until five days after her request for hearingmore than
30 days after the meeting. It is clear that the parent now disagrees with the tutoring services as an
appropriate program for the student. While the parents concerns about the extended tutoring
may be valid, the hearing officer concludes that the parent and the school otherwise agree[d] to
tutoring as the students initial program in SAD 37.

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Has the tutoring provided to the student failed to provide him with a free appropriate
public education (FAPE)?

Students who received special education and supportive services in another school . . . shall, on
transfer, . . . be provided with special education and supportive services consistent with the
Individualized Educational Program (IEP) developed at the previous school . . .and shall be
referred to the receiving units Pupil Evaluation Team. Upon referral, the Pupil Evaluation Team
shall convene as soon as possible to . . . determine the students . . . need for special education
and supportive services, and develop a revised Individualized Education Program, if necessary,
for the student Maine Special Education Regulations (MSER) 10.9
Tutorial services shall be provided to any student with a disability who is unable to participate in
an administrative units regular or special education classes as determined by the Pupil
Evaluation Team consistent with the requirements [of the least restrictive educational alternative
principles]. MSER 5.8. See also 11.
The student who enrolled in the district on September 15, 2004 presented a somewhat
complicated educational history. His school records described a student with an identified
emotional disability who had been in a variety of special education settings in at least 14 different
schools in six years. His most recent IEP, developed in August 2004, showed that within a twoweek period, he displayed disruptive and escalating behaviors in the mainstream setting. This
caused his move from a resource room placement into a highly restrictive special education
program, a program which has no counterpart in the SAD 37 district. The most recent evaluation
revealed a student who had difficulty with interpersonal relationships, poor conflict resolution
skills, and significant social skills deficits. Feeling there was no alternative immediately
apparent, the SAD 37 PET, with the parent as a full participant, decided that tutoring was an
appropriate short-term solution.
The parent now argues that the student should have been allowed access to the public school at
the time of enrollment. However, based on previous history, to have simply placed the student in
a regular classroom or resource room with a full-time aide or shadow to minimize inappropriate
social interactions was a set-up for another failed experience in school. The lack of anything
approaching an appropriate program for the student in the school would have been detrimental to
the student and contrary to the districts obligation to provide him with FAPE. While access to
public school is a fundamental principle of the IDEA, schools are given latitude when the nature
or severity of the disability warrant [sic] other arrangements. The information provided from
school staff in North Carolina and Iowa, coupled with the recent evaluation, support the schools
action to offer a tutoring program for the short-term. Evidence does not support the parents
contention, that the mere fact that tutoring was the program offered, in and of itself, constitutes a
denial of FAPE.

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However, the team failed to develop a new IEP for the student. The minutes of the team meeting
on September 17 note simply that the team agreed that [the student] requires two hours of
tutoring a day in a separate setting to meet his needs. There is no evidence that leads me to
conclude that the IEP from North Carolina was to guide that tutoring, nor did SAD 37 draft a new
IEP. To compound this failure, the student received no services from September 18 to October
14, 2004, when the tutoring services actually began. The fact that the district was unable to find
staff to provide this service did not relieve them of their obligation to serve the student. The
failure to develop a new IEP from September 17, 2004 to October 29, 2004, and the failure to
actually provide any service until October 15, 2004 does amount to a denial of FAPE38.
What remedy is the student entitled to receive?
When it has been determined that the district has failed to provide a free appropriate public
education to a student, the hearing officer may grant such relief as [she] determines is
appropriate. 20 USC 1415(i)(2)(iii). If there has been educational harm, compensatory
educational services are an available and appropriate remedy to the extent that such services were
not delivered. Pihl v. Massachusetts Dept of Educ. 20 IDELR (1st Cir. 1993) See also MSAD
No. 35 v. Mr. and Mrs. R., 312 F.3d 9, 17-18 (1st Cir. 2003)
As discussed above, the districts failure to develop an IEP for the student from September 17
through October 29, and the failure to provide any services from September 17 through October
14, amounts to a denial of its obligation to provide the student with a free appropriate public
education. The student came to the district with needs severe enough that he was unable to
participate in the administrative units regular or special education classes. Yet, he received no
services for the first three weeks. During this time his access to the general curriculum was
limited to his mothers attempts to assist him to complete school work in a new district, in a new
school. The hearing officer concludes this resulted in educational harm to the student, and that
compensatory educational services must be available as a remedy.
The school, however, makes a convincing argument that simply ordering more tutoring is not an
appropriate remedy in this situation. Tutoring will not meet the social/emotional and educational
needs described in his educational history. An appropriate remedy should be designed to ensure
that the student is appropriately educated within the meaning of IDEA. Parents of Student W v.
Puyallup School Dist. No. 3, 31 F.3rd 1489 (9th Cir. 1994) An hour-for-hour reimbursement of
tutoring time equal to the time lost will do nothing to address the students needs.
The student requires a full-time, full-day program that will meet not only his academic needs, but
his identified social/emotional/behavioral needs. As discussed below, the KidsPeace program
provides that opportunity. As a compensatory education remedy, the hearing officer orders the
KidsPeace program to be extended through the end of July 2005 to compensate the student for the
38

The districts argument that the district should not be held accountable for the first 10 days
without services that the school is permitted before there is a significant change in placement is
not persuasive. The service, while ordered by the PET, was simply not provided. I do not agree
that there is a 10-day time-out in this circumstance.

278

districts failure to provide FAPE from September 17 until the new IEP was developed on
October 29.

Does the districts offer at the October 29, 2004 PET meeting--to implement his IEP in
the KidsPeace day treatment program--provide the student with a free appropriate
pubic education in the least restrictive educational alternative?
The Individuals with Disabilities Education Act (IDEA) requires that the school provide students
identified as disabled with a free appropriate public education which is described in the
students individualized education program (IEP). 20 USC 1412(a)(1)(A), 1413 (a)(1),
1414(d)(A) Schools shall ensure that to the maximum extent appropriate. . .removal of
children with disabilities from the regular educational environment occurs only if the nature or
severity of the disability is such that education in regular classes with the use of supplementary
aids an [sic] services cannot be achieved satisfactorily. 34 CFR 300.550(b) This is commonly
referred to as the right to be educated in the least restrictive educational alternative or LRE. In
addition, schools shall ensure that a continuum of alternative placements is available to meet the
needs of children with disabilities including instruction conducted. . . in other settings
300.551, 300.25(a)(i)
In 1982, when the United States Supreme Court was first compelled to interpret what the
Congress intended by free appropriate public education, the Court reasoned that a school had
met its obligation to provide a free appropriate public education if the school had complied
with the procedural and substantive requirements of the law. Board of Education v. Rowley, 553
IDELR 656, 670 (1982)
There is no claim that the district has failed to comply with the procedures set forth in IDEA.
There is no substantive disagreement regarding the services or the goals described in the IEP.
The disagreement centers around the question whether[sic] the proposed placement in the
students IEP complies with the LRE principle.
The two professionals who provided the most recent and most comprehensive view of the
student were Mr. Rambo, the counselor from Montana, and Ms. Armistead, the psychologist
from North Carolina. While they disagreed about the appropriate placement for the student,
they agreed in substance with the type of program that would meet his needs: a highly
structured, self-contained special education setting that could address his behavioral and
academic needs; a small teacher-to-student ratio with a teacher who has experience with this
type of student; a focus on improving his social skills using closely monitored social skills
training; and a professional counselor/therapist who could work with the student and his
family. Mr. Rambo stated explicitly that the students placement should be in the public
school.
The parent argues that the student has always been placed in public schools, and most often
his neighborhood school, and that to do differently in SAD 37 violates his right to be
educated in the least restrictive placement. While it is true that the student has heretofore
been in public school placements, there is insufficient information to determine that those
placements were successful in meeting the students needs. The Iowa placement (roughly
September and October, 2003) generated the most comprehensive program data, but there is
no way to draw any conclusion about the students benefit in that program because the

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student attended for such a short time. Mr. Rambo, the students counselor in Broadview,
Montana, offers his opinion that the student made progress in his social development while
at his school, but there too, the student attended for only 29 school days. The student was in
a public school placement in North Carolina, but staff in that program felt strongly that he
was not well placed in their program. There is no way to conclude that, just because he has
always been educated in public schools, that [sic] he has benefited from those public school
placements.
SAD 37 is a small district in rural Washington County [sic] Maine. It currently operates three
self-contained special education classrooms in the district: one for children who are profoundly
cognitively delayed, one for children who [sic] mentally retarded and one for children who have
autism. The parties all agree that none of these programs is appropriate to the needs of the
student. Yet, the capacity of the district to create a new program to meet the agreed upon needs
of this student is limited. Aside from the self-contained population currently served in the
district, all other special education needs in the district are met through the resource room model
or with modifications within the regular classroom, or in a separate setting. The district has a
shared guidance counselor that serves the elementary schools in the district, and a behaviorist on
contract to the district two days/month. Space for another classroom is not currently available;
specialized positions are difficult to fill in the district.39 If the student is to receive meaningful
benefit it will not be in a cobbled-together program in the Cherryfield Elementary School.
The law and the courts have made clear that placement in a location other than the school the
student would normally attend may be required when the nature or severity of the disability is
such that education in the students neighborhood school cannot be satisfactorily achieved.
MSER 11.2 (C). However, the courts remain consistent in their interpretation that proximity to
home is not a guarantee, nor a mandate of the law. Barnett by Barnett v. Fairfax County Sch. Bd.,
927 F2d 146 (4th Cir. 1991) (Federal regulations impose no obligation on school district to
duplicate highly specialized education program at students base school.) Kevin G. v. Cranston
School Committee, 130 F.3d 481 (1st Cir. 1997) (Districts placement of student in nonneighborhood school to allow access to nursing services available there was appropriate.) Schuldt
v. Mankato Ind. Sch. Dist. No. 77, 18 IDELR 16 (8th Cir. 1991) (Federal regulation is not a
mandate that disabled student be placed in neighborhood school.)
In addition to the recognition that schools may serve students with highly specialized needs
outside their neighborhood schools, the law also allows for schools to meet the needs of
children with disabilities. . . in other settings including private separate day school
placements (MSER 11.3) Recent cognitive and psychological evaluations of the student
conducted by Ms. Armistead describe a student that has significant and long-standing
emotional and behavioral needs. While she does not speak to the issue of private placement in
her evaluation, she states in her report that the student appears ill equipped at this time to
deal with the social demands of the middle school program. During her testimony she stated
that she felt a therapeutic day treatment program such as KidsPeace would be an appropriate
placement for the student, and had such a placement been available in her area, it might likely
have been considered by the IEP team.

39

The district has a special education position at the high school that has been vacant since April
2004.

280

Mr. Rambo was the parents most outspoken witness against the KidsPeace placement. Mr.
Rambo felt the students problems were a result of complicated family dynamics and his
frequent moves which resulted in his always being the new kid on the street. He testified
that the student suffered from one or more mood disorders, not a personality disorder as
suggested by Ms. Armistead40. He expressed a strong opinion that any program should
include normal peers; that it would be detrimental for the student to be placed with
students like that in a therapeutic day treatment program. Yet, Mr. Rambo had no direct
knowledge of the KidsPeace program, nor the student population served in the program.
In contrast, Ms. Nabotnak, the program director from KidsPeace, made it clear that the
student population and the program comes [sic] to that recommended by Mr. Rambo. She
testified that acceptance into the program was not based on a diagnoses [sic]the Diagnostic
and Statistical Manual of Mental Disorders, but on the individual students need and the
probability that he or she could benefit from the program. Students come into the program
with all sorts of diagnoses and labels. Classrooms are highly structured with small
student/teacher ratio, staffed with a special education teacher and an educational technician.
The program includes a full-time psychologist, psychiatrist and social worker. Social skills
training and appropriate response in reacting to emotional conflict is [sic] a focus of the
program throughout the day. That the KidsPeace program is not in the public school does not
render it inappropriate.
Being in a program with access to non-disabled peers in a carefully monitored and positive
way as suggested by Mr. Rambo is certainly the ideal. But, that program does not exist in
SAD 37, nor does the law demand that they create it for this student:
The IDEA does not promise perfect solutions to the vexing problems
posed by the existence ofdisabilities in children and adolescents. The
Act sets more modest goals: it emphasizes an appropriate, rather than an
ideal, education:[sic] 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 childs potential.
Lenn v. Portland School Comm., 998 F.2d 1083 (1st Cir. 1993) (Internal citations omitted).
Evidence shows that the students behaviors deteriorated more rapidly and with more intensity in
his most recent public school placement. Whatever the reasons which might have caused his
unsuccessful experience in North Carolina, there is no reason to suspect that more of the same
will be in this students benefit. The school has acted appropriately in recommending placement
40

During his testimony, Mr. Rambo challenged Ms. Armisteads use of, and conclusions drawn
from, the EBPS-2. He stated that she used the rating scale to make clinical diagnoses, which she
was not qualified to do. Ms. Armistead dispelled that notion in her testimony. She made it clear
that her comments and conclusions using this rating scale were made using the Empirical
Interpretation tables of the instrument, which compared the results noted by raters with a clinical
population who [sic] is diagnosed with these symptoms. Her report clearly states that she is
noting symptoms of behaviorsin comparison to a clinical population.

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in the KidsPeace day program. The hearing officer concludes that the proposed IEP, developed at
the October 29 PET meeting, which places the student in the KidsPeace day treatment program, is
reasonably calculated to provide the student with educational benefit and is the least restrictive
educational alternative.
V. Order

The district shall notify the parent that the IEP and placement at KidsPeace is
available to the student immediately after the receipt of this decision, but in no case
later than December 20, 2004, and shall provide the scheduled times when the district
will transport the student to that program.
The placement at KidsPeace shall continue through July 31, 2005, unless, before that
date it is the judgment of the PET that the students needs can be appropriately met in
another placement. In such case, the district shall provide compensatory education
services in the new placement through July 31, 2005.

Carol B. Lenna
Hearing Officer

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of their disabilities. In addition, we are

called upon to decide whether a district
court may, in the exercise of its equitable
powers, order a State to provide educational
services directly to a disabled child when the
local agency fails to do so.
Page 309
I
In the Education of the Handicapped
Act (EHA or the Act), 84 Stat. 175, as
amended, 20 U.S.C. 1400 et seq.,
Congress sought
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 assure that
the rights of handicapped children and their
parents or guardians are protected.
1400(c). When the law was passed in
1975, Congress had before it ample
evidence that such legislative assurances
were sorely needed: 21 years after this Court
declared education to be "perhaps the most
important function of state and local
governments," Brown v. Board of
Education, 347 U.S. 483, 493 (1954),
congressional studies revealed that better
than half of the Nation's 8 million disabled
children were not receiving appropriate
educational services. 1400(b)(3). Indeed,
one out of every eight of these children was
excluded from the public school system
altogether,
[108 S.Ct. 597] 1400(b)(4); many others
were simply "warehoused" in special classes
or were neglectfully shepherded through the
system until they were old enough to drop
out. See H.R.Rep. No. 94-332, p. 2 (1975).
Among the most poorly served of disabled
students were emotionally disturbed
children: Congressional statistics revealed
that, for the school year immediately
preceding passage of the Act, the
educational needs of 82 percent of all
children with emotional disabilities went
unmet. See S.Rep. No. 94-168, p. 8 (1975)
(hereinafter S.Rep.).
Although these educational failings
resulted in part from funding constraints,

484 U.S. 305 (1988)

108 S.Ct. 592, 98 L.Ed.2d 686, 56 USLW
4091
Honig
v.
Doe
No. 86-728
United States Supreme Court
Jan. 20, 1988
Argued November 9, 1987
CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
BRENNAN, J., delivered the opinion
of the Court as to holdings number 1 and 2
above, in which REHNQUIST, C.J., and
WHITE, MARSHALL, BLACKMUN, and
STEVENS, JJ., joined. REHNQUIST, C.J.,
filed a concurring opinion, post, p. 329.
SCALIA, J., filed a dissenting opinion, in
which O'CONNOR, J., joined, post, p. 332.
Page 308
BRENNAN, J., lead opinion
JUSTICE BRENNAN delivered the
opinion of the Court.
As a condition of federal financial
assistance,
the
Education
of
the
Handicapped Act requires States to ensure a
"free appropriate public education" for all
disabled children within their jurisdictions.
In aid of this goal, the Act establishes a
comprehensive system of procedural
safeguards designed to ensure parental
participation in decisions concerning the
education of their disabled children, and to
provide administrative and judicial review
of any decisions with which those parents
disagree. Among these safeguards is the socalled "stay-put" provision, which directs
that a disabled child "shall remain in [his or
her] then current educational placement"
pending completion of any review
proceedings, unless the parents and state or
local educational agencies otherwise agree.
20 U.S.C. 1415(e)(3). Today we must
decide whether, in the face of this statutory
proscription, state or local school authorities
may nevertheless unilaterally exclude
disabled children from the classroom for
dangerous or disruptive conduct growing out

283

Congress recognized that the problem

reflected more than a lack of financial
resources at the state and local levels. Two
federal court decisions, which the Senate
Report characterized as "landmark," see id.
at 6, demonstrated that many disabled
children were excluded pursuant to state
statutes or local rules and policies, typically
without
Page 310
any consultation with, or even notice to,
their parents. See Mills v. Board of
Education of District of Columbia, 348
F.Supp. 866 (DC 1972); Pennsylvania Assn.
for Retarded Children v. Pennsylvania, 334
F.Supp. 1257 (ED Pa.1971), and 343
F.Supp. 279 (1972) (PARC). Indeed, by the
time of the EHA's enactment, parents had
brought legal challenges to similar
exclusionary practices in 27 other States.
See S.Rep. at 6.
In responding to these problems,
Congress did not content itself with passage
of a simple funding statute. Rather, the EHA
confers upon disabled students an
enforceable substantive right to public
education in participating States, see Board
of Education of Hendrick Hudson Central
School Dist. v. Rowley, 458 U.S. 176
(1982),[1] and conditions federal financial
assistance upon a State's compliance with
the substantive and procedural goals of the
Act. Accordingly, States seeking to qualify
for federal funds must develop policies
assuring all disabled children the "right to a
free appropriate public education," and must
file with the Secretary of
Page 311
Education formal plans mapping out in
detail the programs, procedures, and
timetables under which they will effectuate
these policies. 20 U.S.C. 1412(1),
1413(a). Such plans must assure that, "to the
maximum extent appropriate," States will
"mainstream" disabled children, i.e., that
they will educate them with children who
are not disabled, and that they will segregate
or otherwise remove such children from the
regular classroom setting "only when the
nature or severity of the handicap is such

that education in regular classes . . . cannot

be achieved satisfactorily." 1412(5).
The primary vehicle for implementing
these
congressional
goals
is
the
"individualized educational program" (IEP),
which the EHA mandates for each disabled
child. Prepared at meetings between a
representative of the local school district, the
child's teacher, the parents or guardians, and,
[108 S.Ct. 598] whenever appropriate, the
disabled child, the IEP sets out the child's
present educational performance, establishes
annual and short-term objectives for
improvements in that performance, and
describes the specially designed instruction
and services that will enable the child to
meet those objectives. 1401(19). The IEP
must be reviewed and, where necessary,
revised at least once a year in order to
ensure that local agencies tailor the
statutorily required "free appropriate public
education" to each child's unique needs.
1414(a)(5).
Envisioning the IEP as the centerpiece
of the statute's education delivery system for
disabled children, and aware that schools
had all too often denied such children
appropriate educations without in any way
consulting
their
parents,
Congress
repeatedly emphasized throughout the Act
the importance and indeed the necessity of
parental participation in both the
development of the IEP and any subsequent
assessments of its effectiveness. See
1400(c), 1401 (19), 1412(7), 1415(b)(1)(A),
(C), (D), (E), and 1415(b)(2). Accordingly,
the Act establishes various procedural
safeguards that guarantee parents both an
opportunity for meaningful input into all
decisions affecting their child's education
and the right
Page 312
to seek review of any decisions they think
inappropriate. These safeguards include the
right to examine all relevant records
pertaining to the identification, evaluation,
and educational placement of their child;
prior written notice whenever the
responsible educational agency proposes (or
refuses) to change the child's placement or
program; an opportunity to present

284

complaints concerning any aspect of the

local agency's provision of a free
appropriate public education; and an
opportunity for "an impartial due process
hearing" with respect to any such
complaints. 1415(b)(1), (2).
At the conclusion of any such hearing,
both the parents and the local educational
agency may seek further administrative
review
and,
where
that
proves
unsatisfactory, may file a civil action in any
state or federal court. 1415(c), (e)(2). In
addition to reviewing the administrative
record, courts are empowered to take
additional evidence at the request of either
party and to "grant such relief as [they]
determine[] is appropriate." 1415(e)(2).
The "stay-put" provision at issue in this case
governs the placement of a child while these
often lengthy review procedures run their
course. It directs that:
During the pendency of any proceedings
conducted pursuant to [ 1415], unless the
State or local educational agency and the
parents or guardian otherwise agree, the
child shall remain in the then current
educational placement of such child. . . .
1415(e)(3).
The present dispute grows out of the
efforts of certain officials of the San
Francisco Unified School District (SFUSD)
to expel two emotionally disturbed children
from school indefinitely for violent and
disruptive conduct related to their
disabilities. In November, 1980, respondent
John Doe assaulted another student at the
Louise Lombard School, a developmental
center for disabled children. Doe's April,
1980, IEP identified him as a socially and
physically awkward 17-year-old who
experienced
considerable
difficulty
controlling his impulses and anger. Among
the goals set out in his IEP was
"[i]mprovement in [his] ability to relate to
[his]
Page 313
peers [and to] cope with frustrating
situations without resorting to aggressive
acts." App. 17. Frustrating situations,
however, were an unfortunately prominent
feature of Doe's school career: physical

abnormalities, speech difficulties, and poor

grooming habits had made him the target of
teasing and ridicule as early as the first
grade, id. at 23; his 1980 IEP reflected his
continuing difficulties with peers, noting
that his social skills had deteriorated, and
that he could tolerate only minor frustration
before exploding. Id. at 15-16.
On November 6, 1980, Doe responded
to the taunts of a fellow student in precisely
the explosive manner anticipated by his IEP:
he choked the student with sufficient
[108 S.Ct. 599] force to leave abrasions on
the child's neck, and kicked out a school
window while being escorted to the
principal's office afterwards. Id. at 208. Doe
admitted his misconduct, and the school
subsequently suspended him for five days.
Thereafter, his principal referred the matter
to the SFUSD Student Placement
Committee (SPC or Committee) with the
recommendation that Doe be expelled. On
the day the suspension was to end, the SPC
notified Doe's mother that it was proposing
to exclude her child permanently from
SFUSD, and was therefore extending his
suspension until such time as the expulsion
proceedings were completed.[2] The
Committee further advised her that she was
entitled to attend the November 25 hearing,
at which it planned to discuss the proposed
expulsion.
After unsuccessfully protesting these
actions by letter, Doe brought this suit
against a host of local school officials
Page 314
and the State Superintendent of Public
Instruction. Alleging that the suspension and
proposed expulsion violated the EHA, he
sought a temporary restraining order
canceling the SPC hearing and requiring
school officials to convene an IEP meeting.
The District Judge granted the requested
injunctive relief, and further ordered
defendants to provide home tutoring for Doe
on an interim basis; shortly thereafter, she
issued a preliminary injunction directing
defendants to return Doe to his then current
educational placement at Louise Lombard
School pending completion of the IEP
review process. Doe reentered school on

285

December 15, 5 1/2 weeks and 24

schooldays, after his initial suspension.
Respondent Jack Smith was identified
as an emotionally disturbed child by the
time he entered the second grade in 1976.
School records prepared that year indicated
that he was unable "to control verbal or
physical outburst[s]" and exhibited a
"[s]evere disturbance in relationships with
peers and adults." Id. at 123. Further
evaluations subsequently revealed that he
had been physically and emotionally abused
as an infant and young child, and that,
despite above average intelligence, he
experienced academic and social difficulties
as a result of extreme hyperactivity and low
self-esteem. Id. at 136, 139, 155, 176. Of
particular concern was Smith's propensity
for verbal hostility; one evaluator noted that
the child reacted to stress by "attempt[ing] to
cover his feelings of low self-worth through
aggressive behavior[,] . . . primarily verbal
provocations." Id. at 136.
Based on these evaluations, SFUSD
placed Smith in a learning center for
emotionally
disturbed
children.
His
grandparents, however, believed that his
needs would be better served in the public
school setting, and, in September, 1979, the
school district acceded to their requests and
enrolled him at A.P. Giannini Middle
School. His February, 1980, IEP
recommended placement in a Learning
Disability Group, stressing the need for
close supervision and a highly structured
environment. Id. at 111. Like earlier
evaluations,
Page 315
the February, 1980, IEP noted that Smith
was easily distracted, impulsive, and
anxious; it therefore proposed a half-day
schedule, and suggested that the placement
be undertaken on a trial basis. Id. at 112,
115.
At the beginning of the next school
year, Smith was assigned to a full-day
program; almost immediately thereafter, he
began misbehaving. School officials met
twice with his grandparents in October,
1980 to discuss returning him to a half-day

program; although the grandparents agreed

to the reduction, they apparently were never
[108 S.Ct. 600] apprised of their right to
challenge the decision through EHA
procedures. The school officials also warned
them that, if the child continued his
disruptive behavior -- which included
stealing, extorting money from fellow
students, and making sexual comments to
female classmates -- they would seek to
expel him. On November 14, they made
good on this threat, suspending Smith for
five days after he made further lewd
comments. His principal referred the matter
to the SPC, which recommended exclusion
from SFUSD. As it did in John Doe's case,
the Committee scheduled a hearing and
extended the suspension indefinitely
pending a final disposition in the matter. On
November 28, Smith's counsel protested
these actions on grounds essentially
identical to those raised by Doe, and the
SPC agreed to cancel the hearing and to
return Smith to a half-day program at A.P.
Giannini or to provide home tutoring.
Smith's grandparents chose the latter option
and the school began home instruction on
December 10; on January 6, 1981, an IEP
team convened to discuss alternative
placements.
After learning of Doe's action, Smith
sought and obtained leave to intervene in the
suit. The District Court subsequently entered
summary judgment in favor of respondents
on their EHA claims, and issued a
permanent injunction. In a series of
decisions, the District Judge found that the
proposed
expulsions
and
indefinite
suspensions of respondents for conduct
attributable to their disabilities deprived
Page 316
them of their congressionally mandated right
to a free appropriate public education, as
well as their right to have that education
provided in accordance with the procedures
set out in the EHA. The District Judge
therefore permanently enjoined the school
district from taking any disciplinary action
other than a 2- or 5-day suspension against
any disabled child for disability-related
misconduct, or from effecting any other

286

change in the educational placement of any

such child without parental consent pending
completion of any EHA proceedings. In
addition, the judge barred the State from
authorizing unilateral placement changes,
and directed it to establish an EHA
compliance-monitoring
system
or,
alternatively, to enact guidelines governing
local school responses to disability-related
misconduct. Finally, the judge ordered the
State to provide services directly to disabled
children when, in any individual case, the
State determined that the local educational
agency was unable or unwilling to do so.
On appeal, the Court of Appeals for the
Ninth Circuit affirmed the orders with slight
modifications. Doe v. Maher, 793 F.2d 1470
(1986). Agreeing with the District Court that
an indefinite suspension in aid of expulsion
constitutes a prohibited "change in
placement" under 1415(e)(3), the Court of
Appeals held that the stay-put provision
admitted of no "dangerousness" exception
and that the statute therefore rendered
invalid those provisions of the California
Education Code permitting the indefinite
suspension or expulsion of disabled children
for misconduct arising out of their
disabilities. The court concluded, however,
that fixed suspensions of up to 30
schooldays did not fall within the reach of
1415(e)(3), and therefore upheld recent
amendments to the state Education Code
authorizing such suspensions.[3] Lastly, the
court
Page 317
affirmed that portion of the injunction
requiring the State to provide services
directly to a disabled child when the local
educational agency fails to do so.
Petitioner Bill Honig, California
Superintendent of Public Instruction,[4]
sought review in this Court, claiming that
the Court of
[108 S.Ct. 601] Appeals' construction of the
stay-put provision conflicted with that of
several other Courts of Appeals which had
recognized a dangerousness exception,
compare Doe v. Maher, supra, (case below),
with Jackson v. Franklin County School
Board, 765 F.2d 535, 538 (CA5 1985);

Victoria L. v. District School Bd. of Lee

County, Fla., 741 F.2d 369, 374 (CA11
1984); S-1 v. Turlington, 635 F.2d 342, 348,
n. 9 (CA5), cert. denied, 454 U.S. 1030
(1981), and that the direct services ruling
placed an intolerable burden on the State.
We granted certiorari to resolve these
questions, 479 U.S. 1084 (1987), and now
affirm.
II
..
[Court determines case is not moot despite
the age of the students]
III
The language of 1415(e)(3) is
unequivocal. It states plainly that, during the
pendency of any proceedings initiated under
the Act, unless the state or local educational
agency and the parents or guardian of a
disabled child otherwise agree, "the child
shall remain in the then current educational
placement." 1415(e)(3) (emphasis added).
Faced with this clear directive, petitioner
asks us to read a "dangerousness" exception
into the stay-put provision on the basis of
either of two essentially inconsistent
assumptions: first, that Congress thought the
residual authority of school officials to
exclude dangerous students from the
classroom too obvious for comment; or
second, that Congress inadvertently failed to
provide such authority, and this Court must
therefore remedy the oversight. Because we
cannot accept either premise, we decline
petitioner's invitation to rewrite the statute.
Petitioner's arguments proceed, he
suggests, from a simple, common sense
proposition: Congress could not have
intended the stay-put provision to be read
literally, for such a construction leads to the
clearly unintended, and untenable, result that
school districts must return violent or
dangerous students to school while the often
lengthy EHA proceedings run their course.
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

287

deal with dangerous students; it did,

however, deny school officials their former
right to "self-help," and directed
Page 324
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.
As noted above, Congress passed the
EHA after finding that school systems
across the country had excluded one out of
every eight disabled children from classes.
In drafting the law, Congress was largely
guided by the recent decisions in Mills v.
Board of Education of District of Columbia,
348 F.Supp. 866 (1972), and PARC, 343
F.Supp. 279 (1972), both of which involved
the exclusion of hard-to-handle disabled
students. Mills, in particular, demonstrated
the extent to which schools used disciplinary
measures to bar children from the
classroom. There, school officials had
labeled four of the seven minor plaintiffs
"behavioral problems," and had excluded
them from classes without providing any
alternative education to them or any notice
to their parents. 348 F.Supp. at 869-870.
After finding that this practice was not
limited to the named plaintiffs, but affected
in one way or another an estimated class of
12,000 to 18,000 disabled students, id. at
868-869, 875, the District Court enjoined
future exclusions, suspensions, or expulsions
"on grounds of discipline." Id. at 880.
Congress attacked such exclusionary
practices in a variety of ways. It required
participating States to educate all disabled
children, regardless of the severity of
[108 S.Ct. 605] their disabilities, 20 U.S.C.
1412(2)(C), and included within the
definition of "handicapped" those children
with serious emotional disturbances.
1401(1). It further provided for meaningful
parental participation in all aspects of a
child's educational placement, and barred
schools, through the stay-put provision,
from changing that placement over the
parent's objection until all review
proceedings were completed. Recognizing
that those proceedings might prove long and
tedious, the Act's drafters did not intend

1415(e)(3) to operate inflexibly, see 121

Cong.Rec. 37412 (1975) (remarks of Sen.
Stafford), and they therefore allowed for
interim placements where parents
Page 325
and school officials are able to agree on one.
Conspicuously absent from 1415(e)(3),
however, is any emergency exception for
dangerous students. This absence is all the
more telling in light of the injunctive decree
issued in PARC, which permitted school
officials unilaterally to remove students in
"`extraordinary circumstances.'" 343 F.Supp.
at 301. Given the lack of any similar
exception in Mills and the close attention
Congress devoted to these "landmark"
decisions, see S.Rep. at 6, we can only
conclude that the omission was intentional;
we are therefore not at liberty to engraft onto
the statute an exception Congress chose not
to create.
Our conclusion that 1415(e)(3) means
what it says does not leave educators
hamstrung. The Department of Education
has observed that,
[w]hile the [child's] placement may not be
changed [during any complaint proceeding],
this does not preclude the agency from using
its normal procedures for dealing with
children who are endangering themselves or
others.
Comment following 34 CFR 300.513
(1987). Such procedures may include the
use of study carrels, timeouts, detention, or
the restriction of privileges. More
drastically, where a student poses an
immediate threat to the safety of others,
officials may temporarily suspend him or
her for up to 10 schooldays.[8] This
authority, which respondent
Page 326
in no way disputes, not only ensures that
school administrators can protect the safety
of others by promptly removing the most
dangerous of students, it also provides a
"cooling down" period during which
officials can initiate IEP review and seek to
persuade the child's parents to agree to an
interim placement. And in those cases in
which the parents of a truly dangerous child
adamantly refuse to permit any change in

288

placement, the 10-day respite gives school

officials an opportunity to invoke the aid of
the courts
[108 S.Ct. 606] under 1415(e)(2), which
empowers courts to grant any appropriate
relief
Petitioner contends, however, that the
availability of judicial relief is more illusory
than real, because a party seeking review
under 1415(e)(2) must exhaust timeconsuming administrative remedies, and
because, under the Court of Appeals'
construction of 1415(e)(3), courts are as
bound by the stay-put provision's "automatic
injunction," 793 F.2d at 1486, as are
schools.[9] It is true that judicial review is
normally
Page 327
not available under 1415(e)(2) until all
administrative proceedings are completed,
but, as we have previously noted, parents
may bypass the administrative process
where exhaustion would be futile or
inadequate. See Smith v. Robinson, 468 U.S.
992, 1014, n. 17 (1984) (citing cases); see
also 121 Cong.Rec. 37416 (1975) (remarks
of Sen. Williams) ("[E]xhaustion . . . should
not be required . . . in cases where such
exhaustion would be futile either as a legal
or practical matter"). While many of the
EHA's procedural safeguards protect the
rights of parents and children, schools can
and do seek redress through the
administrative review process, and we have
no reason to believe that Congress meant to
require schools alone to exhaust in all cases,
no matter how exigent the circumstances.
The burden in such cases, of course, rests
with the school to demonstrate the futility or
inadequacy of administrative review, but
nothing in 1415(e)(2) suggests that schools
are completely barred from attempting to
make such a showing. Nor do we think that
1415(e)(3) operates to limit the equitable
powers of district courts such that they
cannot, in appropriate cases, temporarily
enjoin a dangerous disabled child from
attending school. As the EHA's legislative
history makes clear, one of the evils
Congress sought to remedy was the
unilateral exclusion of disabled children by

schools, not courts, and one of the purposes

of 1415(e)(3), therefore, was
to prevent school officials from removing a
child from the regular public school
classroom over the parents' objection
pending completion of the review
proceedings.
Burlington School Committee v.
Massachusetts Dept. of Education, 471 U.S.
at 373 (emphasis added). The stay-put
provision in no way purports to limit or
preempt the authority conferred on courts by
1415(e)(2), see Doe v. Brookline School
Committee, 722 F.2d 910, 917 (CA1 1983);
indeed, it says nothing whatever about
judicial power.
Page 328
In short, then, we believe that school
officials are entitled to seek injunctive relief
under 1415(e)(2) in appropriate cases. In
any such action, 1415(e)(3) effectively
creates a presumption in favor of the child's
current educational placement which school
officials can overcome only by showing that
maintaining the child in his or her current
placement is substantially likely to result in
injury either to himself or herself or to
others. In the present case, we are satisfied
that the District Court, in enjoining the state
and local defendants from indefinitely
suspending respondent or otherwise
unilaterally altering his then current
placement, properly balanced respondent's
interest in receiving a free appropriate public
education in accordance with the procedures
and requirements of the EHA against the
interests of the state and local school
officials in maintaining a safe learning
environment
[108 S.Ct. 607] for all their students.[10]
IV
We believe the courts below properly
construed and applied 1415(e)(3), except
insofar as the Court of Appeals held that a
suspension in excess of 10 schooldays does
not constitute
Page 329
a "change in placement."[11] We therefore
affirm the Court of Appeals' judgment on
this issue, as modified herein. Because we
are equally divided on the question whether

289

a court may order a State to provide services

directly to a disabled child where the local
agency has failed to do so, we affirm the
Court of Appeals' judgment on this issue as
well.
Affirmed.
REHNQUIST, J., concurring

[The Chief Justice wrote separately on the

mootness issue]
SCALIA, J., dissenting
JUSTICE SCALIA, with whom
JUSTICE O'CONNOR joins, dissenting.
[The Justices dissent, believing the case
to be moot]

290

we affirm the court's order that Lauren Light

be removed from her current placement.
I. FACTUAL BACKGROUND
Lauren Light is a thirteen-year-old
child with multiple mental disabilities. She
has been diagnosed at various times as
demonstrating behavioral disorder, conduct
disorder, pervasive developmental disorder,
mild to moderate mental retardation, certain
features of autism, language impairment,
and organic brain syndrome. Behind these
diagnostic labels stands a child whose
condition leaves her prone to impulsive,
unpredictable,
Page 1225
and aggressive behavior. According to her
parents, Lauren is "sometimes defiant, easily
frustrated, irritable, impulsive, and easily
distracted." Plaintiffs' Motion for Temporary
Restraining Order at 2. Moreover, Lauren
"sometimes exhibits aggressive behaviors
such as kicking, biting, hitting and throwing
objects." Id.
For the 1993-94 school year, Lauren
was enrolled in a self-contained classroom
for students with mental disabilities at
Parkway Central Middle School, a public
middle school in Chesterfield, Missouri. The
classroom is operated by the Special School
District ("SSD") of St. Louis County, a
public entity devoted to educating children
with special needs. During the prior school
year, Lauren had been placed in a selfcontained
classroom
at
Riverbend
Elementary School. Seeking greater
educational opportunities for Lauren, her
parents advocated for and obtained a transfer
to Parkway Central Middle School, arguing
that Lauren's behavior might improve amid
similarly-aged peers.
Federal law requires disabled children
like Lauren to be educated pursuant to an
Individualized Education Program ("IEP"), a
comprehensive document which sets forth
objectives, policies, and guidelines and
which governs their day-to-day schooling.
Developed by a team of educators,
specialists, consultants, administrators, and
her parents, Lauren's IEP outlined an

41 F.3d 1223 (8th Cir. 1994)

Martin LIGHT; Diane Light; Lauren
Light, a minor by and through Martin
and Diane Light, her next friends;
Appellants;
v.
PARKWAY C-2 SCHOOL DISTRICT;
Special School District of St.
Louis County; Appellees.
No. 94-2333.
United States Court of Appeals, Eighth
Circuit
December 2, 1994
Submitted Sept. 12, 1994.
Rehearing
and
Suggestion
for
Rehearing En Banc Denied Jan. 11, 1995.
Page 1224
Michael H. Finkelstein, Jefferson City,
MO, argued (Kevin Thompson and Sara
Thompson, on the brief), for appellants.
James G. Thomeczek, St. Louis, MO,
argued (Teri Goldman, on the brief), for
appellees.
Before
FAGG,
Circuit
Judge,
HEANEY, Senior Circuit Judge, and
BOWMAN, Circuit Judge.
HEANEY, Senior Circuit Judge.
This appeal concerns a school district's
attempt to change the educational placement
of an allegedly dangerous mentally disabled
child. Two issues are raised on appeal: (1)
whether the Supreme Court's holding in
Honig v. Doe, 484 U.S. 305, 108 S.Ct. 592,
98 L.Ed.2d 686 (1988), requires a district
court to find that a child is not only
"substantially likely to cause injury" but also
"truly dangerous" before sanctioning a
transfer, and (2) whether a school district
must make a reasonable accommodation of
the child's disability before it can change her
placement. We reject the former contention,
but agree with the latter. We hold that the
district court in this case erred by refusing to
consider whether Lauren Light's disabilities
had been reasonably accommodated.
Nevertheless, based upon our independent
review of the record, we conclude that a
reasonable accommodation was made, and

291

extensive set of duties on the part of the

SSD to accommodate Lauren's disabilities.
Lauren's IEP required that she have two-onone staff support at all times. Thus, in
addition to the classroom teacher assigned to
her room, Lauren was accompanied by one
full-time teacher, Jane Galownia, and one
full-time teacher's assistant, Lynn Wilson,
throughout the school day. Both Galownia
and Wilson have been certified by the State
of Missouri to teach students with mental
handicaps, behavioral disorders, and
learning disabilities.
In addition, the SSD provided special
training to members of the staff who
regularly came into contact with Lauren,
including training in behavior management,
inclusion, and crisis prevention and
intervention. To ease the transition from
Riverbend, the SSD agreed to retain the
services of a consultant selected by the
Lights, Mary Granville of the Judevine
Center for Autistic Children. Granville had
worked with Lauren at Riverbend to
facilitate her inclusion in the regular school
environment, and performed a similar role in
planning for and assisting with Lauren's
transition to Parkway Central Middle
School. Lauren's curriculum included speech
therapy, occupational therapy, physical
therapy, instruction in daily living skills,
adapted physical education, functional
academics, and weekly community access
opportunities. Lauren's teachers kept daily
logs of her activities and behavior and
provided daily reports to her parents.
Outside of the special education classroom,
Lauren was enrolled in several courses in
the regular classroom setting with her
nondisabled peers, including physical
education, art, computer lab, home
economics, and library. The SSD provided
staff support for Lauren to participate in
after-school activities. In September of
1993, the SSD agreed to a request by
Lauren's parents that she be provided music
therapy twice a week. When Lauren's music
therapist became ill, the SSD hired a
replacement and increased the frequency of
the lessons to three a week to make up for

lost instructional time. No other SSD student

was provided with music therapy.
At Parkway Central Middle School,
Lauren exhibited a steady stream of
aggressive and disruptive behaviors, such as
biting, hitting, kicking and poking persons,
throwing objects, and turning over furniture.
School records document that in the two
years prior to her suspension Lauren
committed eleven to nineteen aggressive
acts per week, with a mean of fifteen per
week. Her daily tally of aggressive acts
ranged from zero to nine, with a mean of
three per day. Of these incidents,
approximately thirty required the attention
of the school nurse.
The record suggests that Lauren's
aggressive behaviors had a negative effect
on the educational progress of the five other
special education students in Lauren's
program. The teacher in charge of the selfcontained classroom, Suzanne Seibel,
reported that the class was rarely able to
complete lesson plans due to Lauren's
frequently disruptive behavior. In letters to
the director of special
Page 1226
education for the SSD, parents of some of
the other students in Seibel's class expressed
concerns that the classroom environment
had become tense and stressful, that their
children's academic and social progress had
slowed or halted, and that the class's field
trip schedule had been significantly
curtailed. One student required after-school
academic support to compensate for the
disruptions caused by Lauren's behavior.
Beginning
in
November
1993,
members of Lauren's IEP team began a
process of re-evaluation. Together with
Lauren's parents and their attorney, the IEP
team met for a full day on March 23, 1994.
The team concluded that a change of
placement was in Lauren's best interest.
Also on the agenda was the request of
Lauren's art teacher that Lauren be removed
from the art class due to her consistently
disruptive behavior toward the other
students. The Lights objected to any such
removal and requested an administrative
hearing on that issue. As a result, the Lights

292

invoked the "stay-put" provision of 20

U.S.C. Sec. 1415(e), which stayed any
change in Lauren's placement pending the
resolution of the administrative proceedings.
The team, the Lights and their attorney
reconvened on April 6, 1994, to complete
the proposed revision of Lauren's IEP, and
to address the team's conclusion that Lauren
should be moved to a self-contained
classroom for children with autism in a
neighboring school district. Lauren's parents
disagreed with any change in her placement
and exercised their procedural due process
rights under federal and Missouri law.
On April 12, during art class, Lauren
grabbed and tugged the hand of another
special education student. With her free
hand, Lauren then hit the student three times
on the head. Later that day, following an
informal hearing at which neither of
Lauren's parents was present, the principal
of Parkway Central Middle School imposed
a ten-day suspension on Lauren for her
behavior. Under federal and Missouri law, a
suspension of ten days or less does not
constitute a change of placement, and thus
will not invoke the stay-put requirement.
Mo.Rev.Stat. Sec. 167.171 (1986).
II. PROCEDURAL HISTORY
Lauren's parents brought this action in
the district court seeking to have the
suspension lifted because Lauren was not
afforded due process. Parkway School
District and the SSD counterclaimed and
invoked the court's equitable power to
remove Lauren from Parkway pending the
resolution of the Lights' administrative
challenge to the proposed revisions to
Lauren's IEP, including the proposed change
in placement. 20 U.S.C. Sec. 1415(e)(2).
Parkway and the SSD argued that Lauren's
aggressive behaviors presented a substantial
risk of injury to herself and others in her
current educational placement. After one
day of testimony, the district court ruled that
Lauren had been denied due process and
granted the Light's motion for a temporary
restraining order. Noting that her parents
were not specifically informed of the
suspension hearing, the court apparently
believed that Lauren's disabilities rendered

her unable to advocate on her own behalf

and unable to understand why she was being
suspended. Following two additional days of
testimony, however, the court vacated the
temporary restraining order and instead
granted the school districts' motion for an
injunction removing Lauren from Parkway
Central Middle School. The court found that
"maintaining Lauren in her current
placement is substantially likely to result in
injury either to herself or to others." The
court refused to inquire into the adequacy of
the school districts' efforts to accommodate
Lauren's disabilities. The court further
declined to make any assessment as to the
best alternative placement for Lauren.
III. THE INDIVIDUALS WITH
DISABILITIES EDUCATION ACT
The Individuals With Disabilities
Education Act (IDEA) codifies the goal that
"all children with disabilities have available
to them ... a free appropriate public
education which emphasizes special
education and related services designed to
meet their unique needs...." 20 U.S.C. Sec.
1400(c). Like its predecessor statute, the
Education for All Handicapped Children Act
of 1975, the IDEA provides certain federal
funds to states whose policies "assure[ ] all
children with
Page 1227
disabilities the right to a free appropriate
public education." Id. Sec. 1412(1).
At the heart of the IDEA lie two broad
mandates, one substantive and one
procedural. First, the IDEA seeks to
guarantee the educational rights of disabled
children by requiring policies of inclusion.
Specifically, schools must
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....

293

Id. Sec. 1412(5)(B). As the Third

Circuit has recently reiterated, "this
provision sets forth a 'strong congressional
preference' for integrating children with
disabilities in regular classrooms." Oberti v.
Board of Educ., 995 F.2d 1204, 1213-14
(3rd Cir.1993) (citations omitted). In the
words of the implementing regulations,
schools must educate disabled children in
the "least restrictive environment." 34
C.F.R. Sec. 300.550.
Second, the IDEA mandates that
participating states extend to disabled
children, parents, teachers, school officials,
and educational institutions a host of
procedural protections and administrative
safeguards. 20 U.S.C. Sec. 1415. Schools
must afford parents of disabled children the
opportunity to participate in educational
decisions. States must establish an
administrative review apparatus to resolve
disputes between parents and school
officials over, for example, the proper
educational placement for a disabled child.
Under the IDEA, parents are entitled to
notice of proposed changes in their child's
educational
program
and,
where
disagreements arise, to an "impartial due
process hearing." Id. Sec. 1415(b)(2). Once
the available avenues of administrative
review have been exhausted, aggrieved
parties to the dispute may file a civil action
in state or federal court. Id. Sec. 1415(e)(2).
The IDEA includes a "stay-put"
provision, under which the disabled child
"shall remain in the then current educational
placement of such child" during the
pendency of administrative or judicial
review, unless "the State or local educational
agency and the parents or guardian
otherwise agree on an interim placement."
Id. Sec. 1415(e)(3). By preserving the status
quo ante, the stay-put provision ensures an
uninterrupted continuity of education for a
disabled child pending administrative
resolution. See Logsdon on Behalf of
Logsdon v. Board of Educ. of Pavilion Cent.
School
Dist.,
765
F.Supp.
66
(W.D.N.Y.1991).
In Honig v. Doe, 484 U.S. 305, 108
S.Ct. 592, 98 L.Ed.2d 686 (1988), the

Supreme Court declined to find an implied

exception to the stay-put provision for
assertedly "dangerous" children. The Court
held that Congress intended "to strip schools
of the unilateral authority they had
traditionally employed to exclude disabled
students, particularly emotionally disturbed
students, from school." Id. at 323, 108 S.Ct.
at 604 (emphasis in original). A school
seeking to remove a dangerously disruptive
child from her current educational
placement can overcome the automatic stayput injunction only by obtaining the
permission of the parents or the equitable
sanction of a court. Acting alone, school
officials are restricted to " 'normal
procedures for dealing with children who are
endangering themselves or others,' " such as
"study carrels, timeouts, detention, or the
restriction of privileges." Id. at 325, 108
S.Ct. at 605 (quoting Comment following 34
C.F.R. Sec. 300.513 (1987)). In addition,
"where a student poses an immediate threat
to the safety of others, officials may
temporarily suspend him or her for up to 10
school days." Id.
Emphasizing that the IDEA "does not
leave educators hamstrung," id. at 325, 108
S.Ct. at 605, the Supreme Court outlined the
standard for judicial intervention when a
school is confronted with a dangerous
student:
[S]chool officials are entitled to seek
injunctive relief under Sec. 1415(e)(2) in
appropriate cases. In any such action, Sec.
1415(e)(3) effectively creates a presumption
in favor of the child's current educational
Page 1228
placement which school officials can
overcome only by showing that maintaining
the child in his or her current placement is
substantially likely to result in injury either
to himself or herself, or to others.
Id. at 328, 108 S.Ct. at 606.
This test looks only to the objective
likelihood of injury. We reject as
tautological the contention of Lauren's
parents that a disabled child must be shown
to be "truly dangerous" as well as
substantially likely to cause injury. Their
argument derives from a misreading of

294

Honig and warrants no extensive rebuttal.

More importantly, we reject their suggestion
that schools can only remove children who
intend to cause injury. The Lights argue that
a mentally disabled child cannot be a
"dangerous" child within the meaning of
Honig when that child's disability renders
her unable to intend the injuries she inflicts.
A child's capacity for harmful intent plays
no role in this analysis. Even a child whose
behaviors flow directly and demonstrably
from her disability is subject to removal
where that child poses a substantial risk of
injury to herself or others. We note that in
the case of dangerous disabled children the
purpose of removal is not punishment, but
"maintaining a safe learning environment for
all ... students." Id. Moreover, the removal
of a dangerous disabled child from her
current placement alters, but does not
terminate, her education under the IDEA.
In addition to this threshold standard,
we hold today that there is an essential
second test which must be met by a school
district seeking judicial sanction for the
removal of a dangerous disabled child: The
school district must show that it has made
reasonable efforts to accommodate the
child's disabilities so as to minimize the
likelihood that the child will injure herself or
others. This second inquiry is necessary to
ensure that the school district fulfills its
responsibility under the IDEA to make
available a "free appropriate public
education ... for all handicapped children...."
20 U.S.C. Sec. 1412(2)(B). While we do not
intend to expand district court removal
hearings into wide-ranging assessments of
entire educational programs, we believe that
school districts should not seek to remove
disabled children until reasonable steps have
been taken to mitigate the threat of injury.
The scope of this inquiry is indicated by 20
U.S.C. Sec. 1412(5)(B), which requires that
the "removal of handicapped children from
the regular education 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...." Before exercising its

equitable authority to remove a disabled

child from any placement, a district court
should be satisfied that the school district
has made reasonable use of "supplementary
aids and services" to control the child's
propensity to inflict injury.
In sum, a school district seeking to
remove an assertedly dangerous disabled
child from her current educational
placement must show (1) that maintaining
the child in that placement is substantially
likely to result in injury either to himself or
herself, or to others, and (2) that the school
district has done all that it reasonably can to
reduce the risk that the child will cause
injury. Where injury remains substantially
likely to result despite the reasonable efforts
of the school district to accommodate the
child's disabilities, the district court may
issue an injunction ordering that the child's
placement be changed pending the outcome
of the administrative review process.
IV. IS LAUREN'S PLACEMENT AT
PARKWAY
CENTRAL
MIDDLE
SCHOOL SUBSTANTIALLY LIKELY TO
RESULT IN INJURY?
For reasons outlined above, we
conclude that the district court properly
understood the first prong of our two-part
test. Reviewing the evidence of Lauren's
disruptive behavior at Parkway Central
Middle School, the district court expressed
its conviction "that should this behavior
continue in the Parkway [Central] Middle
School, Lauren will either injure herself or
another" and found that "maintaining Lauren
Light in her current educational placement is
substantially likely to result in injury either
to herself or to others."
Page 1229
These conclusions constitute findings
of fact, which we must uphold unless clearly
erroneous. Craft v. Metromedia, Inc., 766
F.2d 1205, 1212 (8th Cir.1985), cert. denied,
475 U.S. 1058, 106 S.Ct. 1285, 89 L.Ed.2d
592 (1986). "[W]here there are two
permissible views of the evidence, the
factfinder's choice between them cannot be
clearly erroneous." Anderson v. City of
Bessemer City, 470 U.S. 564, 574, 105 S.Ct.
1504, 1511, 84 L.Ed.2d 518 (1985).

295

Deference is due "even when the district

court's findings do not rest on credibility
determinations, but are based instead on
physical or documentary evidence or
inferences from other facts." Id.
The record amply supports the district
court's findings. The record exhaustively
documents Lauren's almost daily episodes of
aggressive behavior at Parkway Central
Middle School. The undisputed testimony of
several witnesses reveals that Lauren kicked,
hit, and bit her teacher, Jane Galownia, at
least several times a week. At various times,
Lauren has hit, kicked, and slapped other
disabled and non-disabled students; thrown
pencils and other objects at other students'
eyes, ears and faces; and attempted to
overturn desks and tables. As noted above,
Lauren's daily log has recorded a mean
incidence of fifteen aggressive acts per
week. Dr. Joseph Jones, the Director of
Special Education for Lauren's region,
testified that Lauren's aggressive behavior
varies cyclically and might generate
anywhere from zero to fifteen incidents on a
given day.
The following undisputed incidents are
illustrative of Lauren's capacity to inflict
injury. On January 12, 1994, Lauren poked
another student in the stomach with a pencil,
slapped Galownia, slapped another student,
and hit Galownia in the face with her head.
On January 13, 1994, Lauren slapped
Galownia twice. On January 31, 1994,
Lauren grabbed Galownia's hand and bit
down hard on her thumb for about fifteen
seconds. Lauren released the thumb upon
the intervention of Mary Granville, the
specialist and consultant, who happened to
be present that day for observation. On both
February 1 and 2, 1994, when Galownia was
assisting with the use of a sewing machine,
Lauren bit her teacher's arm. On February 3,
1994, Lauren hit Galownia and threw a
crayon at another student, striking him in the
face.
On March 3, 1994, Lauren bruised a
nondisabled student by slapping his face as
she ran from the gym, and later bit Galownia
on the hand. On March 18, 1994, while on a
community access trip, Lauren dashed into

the street at an intersection. After Galownia

intervened to retrieve her, Lauren kicked
Galownia and hit Suzanne Seibel. When
they rejoined the group, Lauren kicked
another student. On March 24, 1994, Lauren
bit Galownia on the neck while giving her a
hug. On April 12, 1994, Lauren grabbed the
hand of another disabled student and struck
him three times on the forehead and head,
raising her hand back to her head with each
blow. Later that day at the suspension
hearing, Lauren kicked Galownia several
times.
Our account of these behaviors is
neither detailed nor complete, but serves
only to illuminate our holding that the
district court's findings are not clearly
erroneous.
In addition, the district court heard
testimony that Lauren had occasionally
engaged in behaviors which threatened
injury to herself. Lauren frequently placed
objects in her mouth, including toxic
markers. Dr. Toni Strieker, the Area
Coordinator for the SSD, testified that other
students at Parkway were aware of Lauren's
pattern of physical aggression and were
likely to strike back at her to defend
themselves when attacked. Dr. Joseph Jones,
the Director of Special Education for Region
V in the SSD, testified that other students
displayed increasing anxiety and fear around
Lauren due to the cumulative effect of her
behaviors and to the students' awareness of
the inability of the teaching staff to protect
them entirely.
The record contains little evidence that
Lauren's
aggressive
behaviors
have
decreased in frequency or severity since her
arrival at Parkway Central Middle School.
Dr. Jones testified that Lauren's behavior
had not changed over the previous two
years.
The Lights argue that the district court's
findings are clearly erroneous because
Lauren's behaviors amounted to no more
than a nuisance. The Lights stress that
Lauren only once punctured Galownia's
Page 1230
skin, that no medical treatment by a
physician has been required, and that the

296

police have never been called to restrain

Lauren. In general, the Lights claim that the
district court failed to employ an adequately
specific and stringent definition of "injury."
We disagree. As an initial matter, we
emphatically reject the contention that an
"injury" is inflicted only when blood is
drawn or the emergency room visited.
Bruises, bite marks, and poked eyes all
constitute "injuries" in the context of this
analysis. More broadly, we reject the
proposition that a child must first inflict
serious harm before that child can be
deemed substantially likely to cause injury.
We affirm the district court's use of the
Honig test and find no clear error in its
findings of fact.
V. HAVE THE SCHOOL DISTRICTS
TAKEN REASONABLE STEPS TO
MINIMIZE
LAUREN'S
RISK
OF
CAUSING INJURY?
We find that the district court erred in
its refusal to ascertain whether Parkway
School District and the SSD have made
reasonable efforts to accommodate Lauren's
disabilities. As already noted, this inquiry
should not be a wide-ranging review of all
aspects of a student's educational program,
but should focus on whether the school
district has done all it reasonably can to
minimize the risk of resulting injury through
the use of "supplementary aids and
services." See 20 U.S.C. Sec. 1412(5)(B).
Based upon our independent review of the
record, we conclude that the school districts
have taken reasonable steps to minimize
Lauren's propensity to cause injury. A fuller
discussion of the school districts' efforts is
contained in the factual summary above, and
we need not repeat it here.
The Lights contend that Lauren would
be less likely to cause injury if her teachers
were better trained. They rely on the
testimony of Mary Granville, the consultant
retained by the SSD to facilitate Lauren's
transition to Parkway Central Middle
School. Granville testified that she "would
expect" more training to result in "fewer ...
incidents of biting and kicking...." Tr. 214748. Granville's testimony was contradicted
by several witnesses, including Dr. Toni

Strieker, the Area Coordinator for the SSD.

Strieker gave her professional opinion that
the assistance of inclusion facilitators,
behavior management specialists, special
education consultants, and crisis prevention
trainers had produced no reduction in the
frequency of Lauren's aggressive behaviors.
We note that extensive training and support
have already been provided. Lauren's
teacher, Jane Galownia, and teacher's
assistant, Lynn Wilson, have been
appropriately certified by the State of
Missouri. In addition, Galownia received
specific training from Mary Granville at the
beginning of the school year and consulted
with her from time to time during the
ensuing months. All of the teachers and staff
in Lauren's classroom received training in
crisis prevention and intervention, in
behavior management strategies, and in
inclusion practices. The SSD also provided
periodic assistance from its staff of inclusion
facilitators.
Based upon these uncontradicted facts,
we conclude that the school districts took
reasonable steps to train and prepare
Lauren's teaching staff. The Lights have put
forward no other alternative measures that
they believe the school districts should
reasonably be required to attempt.
In short, the school district has met its
burden under both prongs of the two-part
test we adopt today. The district court
committed no clear error in finding that
Lauren Light's placement at Parkway
Central Middle School was substantially
likely to result in injury, either to herself or
to others. Moreover, we conclude that
Parkway School District and the SSD made
reasonable efforts to minimize the risk that
Lauren would inflict injury. Thus, we hold
that Lauren Light was properly removed by
the district court from Parkway Central
Middle School.
VI.
LAUREN'S
INTERIM
PLACEMENT
Finally, we are confronted with the
issue of the proper interim placement for
Lauren pending the resolution of the Lights'
administrative challenge to the new longterm educational placement proposed by

297

Lauren's IEP team. The parties apparently

disagree about whether Lauren should be
Page 1231
temporarily placed at the Neuwoehner
School, a segregated facility for disabled
children, or in a self-contained classroom for
children with autism at the Brittany Woods
School in a neighboring school district.
Given the temporary nature of the interim
placement and the safety concerns which
motivate the removal, we believe that due
deference should be accorded to the
determination of the school district. We
emphasize that the interim placement should
be maintained only until Lauren's long-term
placement is finalized through the IDEA's
administrative review process. See 20
U.S.C. Sec. 1415.

VII. CONCLUSION
We uphold the district court's finding
that maintaining Lauren Light at Parkway
Central Middle School is substantially likely
to result in injury, either to Lauren or to
others. Based upon our independent review
of the record, we further find that Parkway
School District and the SSD have made
reasonable efforts, through the use of
supplementary aids and services, to
minimize the risk that Lauren will inflict
injury at her current placement. We affirm
the order of the district court that Lauren
Light be removed from Parkway Central
Middle School until such time as her longterm educational placement has been
decided
through
the
appropriate
administrative channels.

298

Special Education
Due Process Hearing Decision
Parents v. MSAD 34
CASE NO: 98.159
REPRESENTING THE PARENT: Martha Temple, Esq.
REPRESENTING THE SCHOOL: Eric Herlan, Esq.
HEARING OFFICER:

Carol B. Lenna

This hearing was held and the decision written pursuant to Title 20-A, MRSA, 7207 et.
seq., and 20 USC 1415 et. seq., and accompanying regulations.
The parents filed a request for due process hearing on behalf of their son, the student on
October 13, 1998. The parents and their child reside in Belfast, Maine. The Student is
enrolled in the MSAD 34 school district, currently at the Middle School.
The parties met in a prehearing conference on November 5, 1998, to exchange documents
and lists of witnesses and discuss the issues for hearing. The hearing convened on
November 13 and 16. One hundred and three documents were entered into the record.
Nine witnesses gave testimony.
The dispute centered around the schools removal of the Student from his public school
placement. Because of written threats made by the Student on a harassment claim form,
the PET removed him from school on September 25, 1998, and ordered an evaluation to
determine his psychological status. The Student began home-based tutoring on that date.
The parents were not in agreement with the removal. The hearing officer ordered the
Student back in school, effective November 10. On that date, the school requested an
expedited hearing to have the Student remain out of school because, in their view, it was
dangerous for him to be maintained in school.
With the agreement of the parties, the hearing officer simultaneously heard evidence on
the issues raised in the expedited hearing, held pursuant to 1415(k)(7), and evidence on
the issues raised in the original hearing. A summary of the hearing officers decision on
the expedited portion only was sent to the parties on November 20, 1998. A copy of that
decision is appended to this decision. Following is the decision on the matters raised by
the parent in their original request for hearing.
I.

Preliminary Statement

The case involves a xx-year-old student who is eligible for special education services
under the category of behavior impairment. His most recent IEP places him in regular
8th grade classes at the Junior High School, with the assistance of an educational
technician in all academic subjects, and 135 minutes weekly of directed study. In
299

addition, the plan calls for social work services 30 minutes weekly and occupational
therapy consultation. The student was mainstreamed without supportive assistance for
the balance of the school day. Tech Ed was one of the classes he attended without
support.
On September 24, after complaining to his Tech Ed teacher that he had been the subject
of harassment by fellow students, the student went to the office to fill out a harassment
claim form. On this form, he made threats to kill certain students. On the following day,
the PET met and removed the student from school. Home-based tutoring was provided
two hours per day.
It was the position of the parents that the school improperly removed the student from
school. They argued that they were not given appropriate notice as to the purpose of the
September 25 PET, and that procedural safeguards were not followed. They made clear
their objection to his removal from school. They argued that the school improperly
relied on 20 USC 1415(k) to remove the student.
The school contended that they did not rely on 1415(k) to remove the student from
school. They argued that the PET, on September 25, ordered that [the student]s
program should shift to an out of school arrangement until his evaluation is complete,
and that this change was made with the parents approval. They further argued that there
is sufficient evidence that the student is substantially likely to cause injury, and that the
student should remain out of school until a safety assessment can be performed by
qualified professionals.
In a letter to the parties on November 7, the hearing officer ordered the student to be
returned to school on November 10, pending the resolution of the hearing. Evidence
supported the parents position that they did not agree with the students removal from
his current placement in the public school. The school had not requested a ruling from a
hearing officer or a judge to consider the issue of the students need to be removed
because he presented a danger. The hearing officer reasoned that if the school had not
relied on 1415 (k), either properly or improperly, to remove the student from school, and
had not requested an expedited hearing to have a hearing officer determine that his
continued placement in school was substantially likely to result in injury to the student or
other students, then the student must remain in his current placement during the
pendency of the hearing. To address safety issues raised by the school, and harassment
issues raised by the parent, the hearing officer ordered additional supervision be provided
to the student.
Immediately after that ruling, the school requested an expedited hearing to consider their
claim that the student presented a danger to others because of his written threats. That
issue was considered during the hearing, in conjunction with the issues raised by the
parent. The decision on that issue only was forwarded to the parties on November 20,
1998. It is appended to this decision.

300

II.

Issues

Did SAD 34 improperly remove the student on September 25, 1998, after he
made threatening statements in a school harassment claim form, and, as a result, violate
his right to a free, appropriate public education?

Was the interim setting - home-based tutoring - appropriate to meet his needs?

Was the IEP in place prior to September 24 appropriate to meet the students
special educational and related needs, as known at that time?
III. Findings of Fact41
1.
The student is identified as behavior impaired. His most recent IEP places him in
the public middle school where he attends mainstream classes. He has an educational
technician available for academic subjects only (four of his five classes). He receives
directed study for organization and work completion. His current behavior plan
addresses his problems with work completion. (Exhibit: 30-36)
2.
On September 24, after an incident in a non-academic class, the student went to
the office to file a harassment claim about certain other students in his class. (Testimony:
Drapach, Mailloux, Cummings; Exhibit: 18)
3.
The student made written threats42 in the harassment form to kill specifically
named students. (Exhibit 23)
4.
The assistant principal contacted the parents to notify them of the events
surrounding the written threats, and to set up a PET. He notified the students mother
that the student was being suspended for two days for this event. With agreement from
the parent, the PET was scheduled for the next day. (Testimony: Mailloux, Parent)
5.
The PET met the next day, September 25. The PET discussed the incident of the
written threats in the harassment form. The minutes of the meeting state that the PET
concluded that the student cannot return to school property until the PET reconvenes
and makes that determination. A psychiatric evaluation was ordered to determine
whether [the student] presents an ongoing risk of serious violence to the school.
Further determinations of the PET state that a functional behavior assessment will be
conducted, and a manifestation determination PET will determine whether or not the
incident is a manifestation of [the student]s disability. No change in his IEP was
proposed. His behavior plan was not revised. The parent was asked to, and did, sign a
waiver of the requirement for 7-day notice of a PET meeting. No written or verbal
review of parents procedural safeguards was given at the meeting. (Testimony: Marden,
Bosk, Drapach, Parent; Exhibit 21)
6.
The students teachers and special education staff completed a functional
behavioral assessment. This information was presented to the PET on October 9. The
41

The exhibits for both the expedited hearing and this hearing are the same. Many of the
findings of fact listed in the expedited hearing decision are pertinent to the conclusions
in this decision. They are repeated here.
42
Subsequently, one of the students alleged that the student had made verbal threats to
kill her. She did not testify. No one heard the threat. She did not report the threat until
several weeks after the incident in this case.
301

assessment notes that the student does not mix well with other students; [h]e feels he
is being picked on very, very often. This has been a school issue for many years.
[L]arge group unstructured situationsworsen his behavior. The assessment notes that
negative behaviors are least likely to occur when an adult is within 5 of [the student],
or in classrooms with special education support or in small groups. His special education
teacher stated that he feels safer when there is more adult support and fewer students in a
situation. (Exhibit 13; Testimony Dymowski, Drapach)
7.
On October 9, the PET met again. Minutes of the PET state that the parents
disagreed with the continued exclusion of the student from the public school. No
decision was made regarding the relationship of the students disability and the behavior
that led to his removal from school. (Exhibit 10; Testimony Parent)
8.
The student received home-based tutoring two hours per day from September 26
until November 9. The school social worker met with the student at home on a weekly
basis. (Testimony: Parent, Drapach, Hess)
9.
A child psychiatrist met with the student within 10 days of the students removal
from school. He conducted a clinical assessment of the student. No standardized testing
was performed. In a conference call with school staff, the psychiatrist was unwilling to
conclude whether or not the student presented an ongoing risk of violence to himself or
the school. He recommended the school contract with a psychologist to have a complete
battery of tests completed. He filed no written report on his meeting with the student.
(Testimony: Parent, Drapach, Bosk; Exhibit: 8, 17)
10.
The parent contracted with a local clinical counselor soon after the students
removal from school. After interviewing the student, and reading the written threat, he
concluded the student has the internal restraints that are necessary to make a distinction
between threat and action. The counselor has met with the student, in clinical sessions,
three times in approximately 6 weeks. (Testimony: Edelston)
11.
The student has no history of violence at school. The student has had minimal
disciplinary events at school. (Testimony: Parent, Drapach, Bosk, Dymowski, Marden)
12.
While the PET did not conclude whether or not the students behavior was a
manifestation of his disability, school staff stated that they feel that the written threats
resulted from behavior that is related to his disability. (Testimony: Drapach, Marden,
Hess)
13.
Before his removal, the student was achieving passing grades in all subjects. All
agreed that the year had started off well and that he has shown improvement from the
previous year. (Testimony: Dymowski, Hess, Marden, Parent)
14.
Since returning to school on November 10 the student has a full-time individual
aide assigned to him. There have not been any behavioral events of consequence. He
appears to have reintegrated well into the school routine. Staff note that he is interacting
well with his aide. (Testimony: Drapach, Mailloux, Hess)
III.

Conclusions
Did SAD 34 improperly remove the student from school?

The parties did not dispute the facts surrounding the threats written by the student in the
harassment claim form. The parties did not disagree that the writing of these threats was
302

a matter to be taken seriously. The parties did not disagree that a comprehensive
evaluation was needed. However, the parents were clear that they did disagree with his
removal from school.
There are limited circumstances in which a student with a disability can be removed from
school when the parties do not agree to a change of placement. Recent change in federal
law gives schools the authority to remove students with disabilities from public school if
the student brings a weapon to school, or knowingly possesses or uses illegal drugs at
school. The schools may remove the student for up to 10 days, and have the authority to
place the student in an appropriate interim alternative educational setting for a
maximum of 45 days. See 1415(k)(1) If a hearing officer determines that it is
dangerous for a student to remain in school, he or she has the authority to remove the
student from school and order a change of placement to an interim setting for not more
than 45 days. See 1415(k)(2) In either case, this removal may be done without parent
approval, but is subject to a parents right to due process. See 1415(k)(7)
If a student with a disability violates any rule or code of conduct of the school, the school
may suspend the student or place him or her in an alternative setting for up to 10 days.
During those 10 days the school must convene a PET to determine what, if any,
relationship exists between the students conduct and his disability. If it is determined
that the students conduct was a manifestation of his disability the school may initiate a
change in placement, but may not remove him from school long-term. If no relationship
exists, the school may remove the student, but must provide services consistent with his
IEP. See 1415(k)(4) Again, any action taken by the PET without consensus is subject
to the parents right to due process.
Initially, it appeared that the school relied on some part of 1415(k) to remove the student
from school. The minutes of the September 25 PET use the language of the law in
setting out the procedural steps to be followed.
Although the body of the minutes do
not reflect a discussion of those procedural requirements, the determinations state that: a
functional behavior assessment will be conducted, a manifestation determination PET
will determine whether or not the incident is a manifestation of [the students] disability,
and [the student] will be tutoredup to 45 days. It was clear that the student would
not be allowed to return to school property until the PET reconvenes and makes that
determination based on a psychiatric evaluation [to determine] whether he presents an
ongoing risk of serious violence to the school.
The school argued that it did not rely on 1415 (k) to remove the student, but rather
changed the students placement, pending evaluation, with the approval of the family.
The school contends that the parent agreed with the decision to provide home-based
tutoring until a psychiatric evaluation could be completed. The parent is adamant that
they did not agree. They contend there was no discussion at the September 25 PET about
program options; the student was being removed to his home until a professional assured
the school that the student was not a danger to other students at the school. Regardless

303

of the positions of the parties at that point, the school had the right to remove the student
for 10 days for a violation of school conduct43.
By October 9, however, the school had an obligation to return the student to his current
program. The 10-day allowance had expired. The parents objection to the students
continued removal from school was indisputable. There was no consensus that the
students program should be changed to a home-based tutoring program for two hours per
day. The PET did not determine that the students behavior in the threatening incident
was not a manifestation of his disability, and therefore subject to expulsion. The PET
did not request a ruling from a hearing officer or a judge to remove the student because
he posed a risk. In addition, when the parents requested a hearing four days later, the
school was in violation of the stay put provision. During the pendency of any due
process or judicial proceedingunless the [school] and the parents agree otherwise, the
studentshall remain in hiscurrent educational placement. Chapter 101(10.12) By
this point, the school determined unilaterally that the student would not be returned to
school in violation of statute. The school had an obligation to either return the student to
school or request that a hearing officer remove him to an alternative setting for up to 45
days because maintaining him in his current placement was substantially likely to result
in injury to the student or others. The students right to a free appropriate public
education was compromised by the schools continued action to keep the student out of
school.
The school argued that the risk of keeping a student in school who has threatened to kill
other students is a grave risk to the safety of the school community, and that the school
has a responsibility to protect the life and safety of those students. They maintained that
school staff acted appropriately to bar the student from school until a mental health
professional could evaluate him and determine his mental health status.
There is no question that any threat by a student should be considered as a serious matter.
There is no question that schools are charged to protect the safety of the students in its
care. However, it has an equal charge to protect the rights of the students in its care as
well. There is a process for removing students with disabilities from school. The school
did not apply this process. The school was in violation of the students right to a free
appropriate public education when it relegated him to 45 plus days of home-based
tutoring.
Was home-based tutoring appropriate to meet the students needs?
The school improperly excluded the student from receiving a free appropriate public
education in the lease restrictive environment. Whether this setting was appropriate to
meet his needs is moot at this point.

43

See also Title 20-A MRSA 1001(9-B): [T]he school board may authorize[the
suspension of] an exceptional student up to a maximum of 10 daysfor infractions of
school rules.
304

Was the IEP in place prior to September 24 appropriate?

The current IEP44 was written in the spring of 1998 prior to the students return to school.
The plan described services to meet those needs that had been identified by the PET at
that point. Special education instruction and related services were provided to support
his academic and social needs. School staff and parents agreed that the student was
performing well in his academic subjects. He appeared to have started the new school
year well.45 Work completion, which had been a problem in past years, was improving
and was reflected in his grades. Peer relationships continued to be problematic, but his
participation with the social worker showed progress. By all accounts, the IEP resulted
in his achieving educational benefit and was therefore appropriate.
The parents had repeatedly voiced concerns to school administrators about what they saw
as a pattern of peer harassment toward their son. There continued to be claims by the
student of harassment and teasing from other students. It may be argued at this point that
he should have had more comprehensive support during the less structured periods of his
day and that this might have prevented the incident that led to the students threats.
However, the school was not remiss in providing that additional intervention prior to the
incident. The school was aware that the student exhibited certain behaviors that are
atypical for average adolescents, and acknowledged that he had poor social strategies for
normal adolescent peer behaviors. However, they were accepting of these behaviors, and
provided a supportive environment for him for a majority of his day. For the most part,
he was doing well before the incident that led to his removal. There were no specific
events of note in the early part of the year.
V. Order46
1.
The school shall convene the PET before November 27, 1998 to develop a change
in program within the public school for the student pending the outcome of the evaluation
ordered, and shall remain in effect until the PET changes the program. That change shall
be designed to minimize the risk that the student will carry out any threat of violence
toward himself or other students. That change shall include at least one weekly session
with the students counselor47 paid for by the school. The students case manager shall
devise a plan for coordination between the counselor and the school program.

44

The students IEP has not changed since the students suspension. The parties agree
that the PET will wait for the competed evaluation before any changes are made. This
was not an issue for hearing.
45
The student was home-schooled for the last two months of the previous school year.
He reentered school at the beginning of the 1998-99 school year.
46
This order includes those items listed in the expedited hearing order.
47
Whether the student continues to see Mr. Edelston or not will be a matter left to the
agreement of the parties. If the parties are unable to agree, the parent shall choose the
counselor based upon the students prior relationship with the counselor.
305

2.
The school shall complete the evaluation process no later than December 10,
48
1998 . The school shall notify the Pediatric Center in writing that they are under a
hearing officers order to complete the evaluation by that date. If the Center is unable to
commit to complete the major portion of the evaluation by that date, the school shall
locate another qualified evaluator who can complete the evaluation by that date.
3.
The PET shall convene within 10 days of the beginning of school after the
December vacation to consider the evaluation. The Pet shall make changes as necessary
in the students IEP.
4.
The school shall assess the students current academic standing to determine
schoolwork negatively affected by the students absence from school. Individual
support, outside the normal school day, shall be provided two and hours per week for 4
weeks, to compensate for missed class time and any missed assignments.

.
Carol B. Lenna
Hearing Officer

48

By letter from the school, the hearing officer was informed that the Pediatric Center
notified the school that the evaluation would be completed by December 7, but a written
report will not be available until late December. After consideration, the hearing officer
ordered the school to continue with this evaluation.
306

are saddled with the responsibility of

ensuring that children with disabilities
receive FAPE.[1] See id. at 1412-13. In
return, the states receive funds from the
federal government for use in implementing
the provisions of the Act. See id. at
1412(a).
Page 41
A "pupil evaluation team" (or
"PET")[2] consisting of a disabled child's
parents, teachers, school administrators, and
others who know the child well, oversees the
child's special education. See id. at
1414(d); 20-A M.R.S.A. 7202(10); 05071-101 Code Me. R. 8.1-8.11. The PET
meets annually, and more often if necessary,
to develop an "individualized educational
program" (or "IEP") outlining the special
education services the child should receive.
See 20 U.S.C. 1414(d). Teacher and parent
input and the results of a formal evaluation
of the child conducted by the local
educational agency inform the PET's
decision-making. See id. at 1414(d) (3). A
formal evaluation must be conducted at least
once every three years. See id. at 1414(a)
(2).
B. The IDEA's Disciplinary Provisions
If a child with a disability misbehaves
in school, the IDEA provides detailed
procedures that the local educational agency
must follow to suspend or expel him. To
begin with, the Act gives "school personnel"
the unilateral power to suspend a child with
a disability for up to ten days as they would
a non-disabled child--that is, without
providing the child with an "alternative
educational setting" (such as out-of-school
tutoring). See 20 U.S.C. 1415(k) (1) (A)
(i). In Maine, school boards vested with the
statutory power to oversee the operation of
school administrative districts can give this
power to a school principal. See 20-A
M.R.S.A. 1001(9-B).
If a child with a disability brings drugs
or weapons to school, then the IDEA
authorizes school personnel to "remove" the
student to an "interim alternative educational
setting" for up to an additional forty-five

Page 37
165 F.Supp.2d 37 (D.Me. 2001)
Russell FARRIN et al., Plaintiffs
v.
MAINE SCHOOL ADMINISTRATIVE
DISTRICT No. 59, Defendant
No. CIV. 01-43-B-S.
United States District Court, D. Maine.
Oct. 10, 2001
Page 38
[Copyrighted Material Omitted]
Page 39
[Copyrighted Material Omitted]
Page 40
Richard L. O'Meara, Murray, Plumb &
Murray, Krista N. Everly, Murray, Plumb &
Murray, Portland, ME, for Plaintiffs.
Eric R. Herlan, Drummond, Woodsum
& Macmahon, Portland, ME, for Defendant.
FINDINGS
OF
FACT
AND
CONCLUSIONS OF LAW
SINGAL, District Judge.
Plaintiffs Russell Farrin and Barbara
Farrin, on behalf of their son Jacob Farrin,
appeal a hearing officer's Special Education
Due Process Hearing Decision issued
pursuant to the Individuals with Disabilities
Education Act, 20 U.S.C. 1400 et seq. (the
"IDEA" or the "Act"), and the Special
Education provisions of the Maine Revised
Statutes, 20-A M.R.S.A. 7001 et seq. (the
"Maine Statutes"). Pursuant to the Court's
Findings of Fact and Conclusions of Law
stated below, the Court AFFIRMS the
hearing officer's decision.
I. OVERVIEW OF THE IDEA AND
MAINE STATUTES
A. Background of the IDEA
Congress enacted the IDEA to ensure
that children with disabilities receive a "free
appropriate public education" (or "FAPE").
See 20 U.S.C. 1401(d) (1) (A). FAPE
consists of special education and related
services that are provided to children with
disabilities at public expense and under
public supervision during preschool,
elementary school and secondary school.
See id. at 1402(8). The states and "local
educational agencies" located within them

307

days. See 20 U.S.C. 1415(k) (1) (A) (ii).

Maine vests this removal power in the
school board of the administrative district in
which the school sits. See 20-A M.R.S.A.
1001(9-B). This forty-five day removal
typically occurs after the initial ten-day
suspension mentioned above. See 64
Fed.Reg. 12,620 (Mar. 12, 1999).
Recognizing that schools have their
own disciplinary rules applicable to all
students, the IDEA also permits a school to
discipline a child with a disability for more
than ten days as it would discipline a nondisabled child, provided the disabled child's
misbehavior was not a "manifestation" of his
disability. See 20 U.S.C. 1415(k) (5) (A).
This power to "long-term suspend" a child
comes into play when children with
disabilities commit offenses that are not
covered by the IDEA's forty-five day
suspension provisions (that is, that do not
involve drug or weapon possession), or in
cases like this one, in which the forty-five
day suspension is not adequate punishment.
Therefore, a child with a disability
caught bringing drugs to school may be
subject to the following disciplinary
measures. First, he may be immediately
suspended from school, without alternative
educational services, for up to ten days. See
id. at 1415(k) (1) (A) (i). Second, he may
serve an additional forty-five day
suspension, during which time the school
must provide him with alternative
educational services. See id. at 1415(k) (1)
(A) (ii). Third, in addition to or in place of
the forty-five day suspension under the
IDEA, he may be suspended or expelled
from school under generally applicable
school disciplinary rules, provided
Page 42
his behavior was not a manifestation of his
disability. See id. at 1415(k) (5) (A). Note
that there is the possibility of overlap
between the IDEA's forty-five day
suspension provisions and generally
applicable school rules. The functional
difference between the two disciplinary
measures (aside from their duration) is
largely semantic, however, due to the
procedural protections in place for children

with disabilities who are removed from

school for more than ten days.
Whenever discipline results in a child
with a disability being kept out of school for
more than ten consecutive days, either
pursuant to the IDEA or generally applicable
school rules, a so-called "change of
placement" has occurred. See 34 C.F.R.
300.519. When this happens, an additional
set of procedural protections kicks in to
protect the child. First, no later than the day
the decision to change the placement is
made, the child's parents must receive
written notice of the decision and their
procedural rights. See 20 U.S.C. 1415(k)
(4) (A) (i). The parents' procedural rights
include the right to appeal the decision to a
hearing officer and the right to appeal the
hearing officer's decision to federal court.
See generally id. at 1415(d) (2).
Second, as of the eleventh day of
suspension (i.e. the change of placement),
the school must provide the child with an
alternative educational setting. See id. at
300.520(a) (1) (ii). The setting must be
sufficient to allow the child to "continue to
progress in the general curriculum." See 20
U.S.C. 1415(k) (3) (B); id. at 300.522.
There is no hard-and-fast rule as to what
specific educational services need to be
provided in an alternative setting. Rather,
the comments appended to the IDEA's
implementing regulations defer to state and
local definitions of "general curriculum" for
guidance. See generally 64 Fed.Reg. 12,623
(March 12, 1999).
Third, within ten days of the decision to
change the child's placement, the PET must
convene to determine if the behavior was a
manifestation of the child's disability. See 20
U.S.C. 1415(k) (4) (A) (ii). The PET may
consider evidence not only of the child's
identified disability, but also of any alleged
disability that has yet to be identified in the
child. SeeRichland Sch. Dist. v. Thomas P.,
No. 00-C-0139-X, 2000 U.S. Dist. LEXIS
15162, at *25-28 (W.D.Wis. May 24, 2000);
64 Fed.Reg. 12,625 (March 12, 1999). A
finding that the behavior was not a
manifestation clears the way for the school
to discipline the child pursuant to generally

308

applicable school rules. See id. at 1415(k)

(5) (A). If the PET decides the behavior was
a manifestation, however, then the generally
applicable rules cannot be applied to the
child. Seeid. Nevertheless, a child who was
suspended under the IDEA for bringing
drugs or weapons to school must serve the
entire forty-five days of his suspension,
notwithstanding the
result
of
the
manifestation determination. See, e.g., 64
Fed.Reg. 12,626 (Mar. 12, 1999).
Finally, within ten days of the change
of a child's placement, the child's PET must
meet to perform a "functional behavior
assessment." See 20 U.S.C. 1415(k) (1)
(B); 34 C.F.R. 300-520. The purpose of
the functional behavior assessment is to
explore the child's misbehavior and discover
what, if anything, can be done to address it
and prevent it from occurring again. See
generally 64 Fed.Reg. 12,618 (March 12,
1999); Turnbull, IDEA, Positive Behavioral
Supports, and School Safety, 30 J.L. &
Educ. 445, 456-58 (2001). After completing
the assessment, the PET will apply the
results in developing a "behavioral
intervention plan" detailing the procedures
school personnel should use in
Page 43
guiding the student towards more
appropriate behavior. See 20 U.S.C.
1415(k) (1) (B); 34 C.F.R. 300.520(b).
C. The IDEA's Procedural Protections
for Parents and Students
The IDEA gives a disabled child's
parents a number of procedural rights
intended to ensure their participation in the
development of their child's program and
placement. See generally 20 U.S.C.
1415(b). In particular, the parents have a
right to request a "due process hearing" to
challenge the adequacy of their child's IEP,
the result of a manifestation hearing, or the
school's decision to take disciplinary action.
See id. at 1415(f); 1415(b) (6); 1415(k)
(6). In Maine, a hearing officer conducts the
due process hearing by receiving oral and
written evidence. At the close of evidence,
the officer renders Findings of Fact and
Conclusions of Law. See 101 Me. Spec. Ed.
Reg. 13.1 et seq.; 14.1 et seq. If the

parents wish, they may appeal the officer's

decision to a federal district court. See 20
U.S.C. 1415(i) (2).
While an appeal by the parents is
pending, a child with a disability who has
been suspended or expelled from school
may "stay put" in his "current educational
setting" (i.e., in school). See id. at 1415(k)
(7). However, a child suspended for drug or
weapon possession under the IDEA's fortyfive day rule must serve out his suspension
in an alternative educational setting, even
pending an appeal of the suspension. Seeid.
II. STANDARD OF REVIEW
The Court's scrutiny of a hearing
officer's decision falls short of de novo
review.
.
Applying this standard, the Court
outlines its Findings of Fact and
Conclusions of Law below.
III. FINDINGS OF FACT
A. The Parties
1. Plaintiffs Russell Farrin and Barbara
Farrin are the parents and legal guardians of
Jacob Farrin, and are residents of Madison,
Maine.
2. In 2000, Plaintiff Jacob Farrin was
fourteen years old and an eighth-grade
student at Madison Junior High School (the
"School"), located in Madison, Maine.
3.
Defendant
Maine
School
Administrative District No. 59 ("MSAD No.
59") is the local educational agency that
administers the School. The School Board is
its governing body.
4. M.S.A.D. No. 59 is responsible for
providing special education services to
students at the School and all other schools
under its control.
B. Jacob's Learning Disability
5. Jacob is a student with a learning
disability eligible for special education
services pursuant to state and federal law.
6. During the 1997-98 school year, his
fifth-grade year, Jacob's teachers noticed he
was struggling to master language-based
skills such as reading, writing and speech.
7. In the spring of 1998, M.S.A.D. No.
59 conducted an evaluation to determine

309

whether Jacob was eligible for special

education services.
8. The bulk of the evaluation addressed
deficiencies in Jacob's language abilities.
However, one battery of tests, known as a
"Burks Behavior Scale," took stock of
Jacob's behavioral patterns as well.
9. The Burks test revealed a tendency
for Jacob to act impulsively and to become
frustrated when confronting his disability.
The evaluator noted "slight behavioral
concerns," and recommended strategies for
teachers to head off Jacob's frustration and
anger in the classroom. See Record at 129.
10. The results of the evaluation
indicated that Jacob was eligible for special
education services.
11. After the evaluation, Jacob's PET
developed an IEP for his sixth grade year.
12. There is no evidence in the record
that the sixth grade IEP contained a
behavioral component, or treated Jacob as
having a disability that caused him to act
impulsively.
13. During his sixth-grade year, Jacob's
parents requested that further evaluations be
conducted of Jacob's language abilities. A
specialist performed new tests and made
additional educational recommendations.
14. There is no evidence in the record
that the Farrins' request reflected a concern
about Jacob's behavior.
Page 45
The new tests did not address any tendency
on Jacob's part to act impulsively.
15. In the spring of 1999, Jacob's PET
convened for the annual revision of his IEP,
preparing for his seventh-grade year. Neither
Jacob's parents nor his teachers appear to
have raised Jacob's alleged tendency to act
impulsively as a concern.
16. In the spring of 2000, Jacob's PET
convened for the annual revision of his IEP
in preparation for his eighth-grade year.
17. The eighth grade IEP addressed
Jacob's "lower reading and writing skills." It
provided for a program of daily
supplemental English and reading exercises
conducted by a "special education teacher,"
and a weekly consultation with a speech
specialist. See Record at 78.

18. The IEP also permitted Jacob

"special considerations" in his other core
classes. A special consideration is a
privilege, such as having extra time to take
tests, given to a student to compensate for
any disadvantage he might experience in his
classes due to a language disability. Seeid.
19. The eighth-grade IEP did not
address any aspect of Jacob's behavior, other
than indicating that he would be "held
accountable
to
regular
discipline
consequences for school and bus behavior."
Seeid. at 79.
20. Jacob completed seventh grade in
the spring of 2000 with a B+ average,
earning A or B grades in all of his classes.
21. A little over one month into Jacob's
eighth-grade year, Jacob's academic
performance began to decline, his grades
dropping to the C and D range.
22. In early October of 2000, Jacob's
parents requested that the PET reconvene to
address the decline in Jacob's academic
performance.
23. On October 26, 2000, the PET met
to discuss the parents' concerns. Jacob and
his mother were present. At the meeting,
Jacob attributed his lack of effort in several
classes to being tired from playing football.
He acknowledged that he needed to work
harder, and that the special considerations he
received in his classes were generally
adequate.
24. Aside from a teacher's comment
that Jacob appeared sleepy and disinterested
in one class, nothing in the record indicates
that there was any discussion at the October
26, 2000 PET of any concerns the PET had
about Jacob's behavior.
25. No significant changes were made
to Jacob's IEP as a result of the October 26,
2000 PET.
26. Jacob's school principal referred to
him as a "role model for other students." See
Hearing Testimony at 203. In school, Jacob
was bright, personable and popular with his
peers. He participated in scholastic sports
and other extracurricular activities.
27. With the exception of the two
incidents highlighted below, Jacob obeyed

310

school rules and verbally encouraged his

classmates to do the same.
28. Both Jacob's mother and a family
friend described Jacob as impulsive and
prone to having poor judgment. However,
they acknowledged that this behavior, to the
Page 46
extent it existed, manifested itself largely
outside of school.
C. The Alcohol Incident
29. In the fall of 1999, during his
seventh-grade year, Jacob was disciplined
for his participation in a drinking incident in
which Jacob and several football teammates
were caught drinking beer. He was
suspended for fewer than ten days as a result
of his involvement in the incident.
30. No PET meeting was called as a
result of the beer drinking incident, nor did
the Farrins request one. Jacob's principal
characterized the incident as a "group"
offense. See Hearing Testimony at 222.
D. The Marijuana Selling Incident
31. On or about October 18, 2000,
Jacob brought marijuana to school.
32. During a study period, Jacob
arranged for another classmate to sell some
of the marijuana to a third student.
33. Jacob gave the marijuana to the
classmate, and the classmate, acting as a
middleman, conducted the sale in a school
bathroom.
34. Later, Jacob met the middleman in
the bathroom and received $4.50 in proceeds
from the sale and the remainder of the
marijuana from him.
35. The sequence of events, from
bringing the marijuana to school to
ultimately receiving the remainder of the
marijuana and the sale proceeds, took place
over the course of several hours.
36. The events of October 18th did not
come to light for several weeks. They had
not been revealed as of October 26th, the
date that Jacob's PET addressed his
academic troubles.
E. M.S.A.D. No. 59's Disciplinary
Actions Against Jacob
37. On November 3, 2000, the School's
principal, Mark L. Campbell, called Jacob
into his office and confronted him with

evidence of the narcotics transaction. Jacob

admitted to his involvement in the drug sale.
38. Mr. Campbell immediately
suspended Jacob from school for ten school
days, beginning Monday, November 6,
2000.
39. By letter dated November 10, 2000,
Mr. Campbell formally informed Jacob's
parents of the ten-day suspension. The letter
also indicated that Jacob would have to
appear before the School Board for a
disciplinary hearing. The letter did not
mention the Farrins' procedural rights.
40. Sometime before the School Board
hearing, Jacob's parents met with Mr.
Campbell. During the meeting there was
some discussion about the additional
punishment Jacob could receive beyond the
ten-day
suspension,
although
the
participants did not reach a clear
understanding. Specifically, Mr. Campbell
did not indicate to the Farrins that he would
recommend that the School Board expel
Jacob.
41. On Monday, November 20, the
evening prior to Jacob's eleventh day of
suspension, the School Board met and,
pursuant
to
Mr.
Campbell's
recommendation, voted to expel Jacob for
the remainder of the school year.
42. The School Board did not
specifically vote to suspend Jacob under
Page 47
the IDEA's forty-five day suspension
provision for drug offenders.
43. Both parents attended the School
Board meeting, and at least one parent
verbally participated in it.
44. The School Board did not have
Jacob's special education file before it
during the November 20th meeting,
although at the meeting several people made
the Board aware that Jacob was disabled and
that a manifestation review would have to be
held.
45. Jacob began serving his expulsion
the next day, Tuesday, November 21, 2000.
46. On November 21, 2000, the
School's special education director, Irene
Christopher, contacted Mrs. Farrin to
schedule Jacob's manifestation review. They

311

discussed possible dates but did not settle on

one.
47. During the next week, Ms.
Christopher made several more attempts to
contact the Farrins to schedule the
manifestation review within ten days of the
School Board meeting, but to no avail.
48. Mrs. Farrin, who was able to
recognize the identity of a caller before
answering the telephone with a "caller ID"
device, admits to avoiding telephone calls
from the school that week.
49. On November 28, 2000, Ms.
Christopher sent a letter to the Farrins
scheduling the manifestation review for
December 11, 2000, a date twelve school
days after the School Board meeting.
50. On November 29, 2000, the Farrins
requested a due process hearing from the
Maine Department of Education to contest
Jacob's expulsion.
51. During the entire period from
November 21, 2000, until the manifestation
review meeting on December 11, 2000,
Jacob received out-of-school tutoring from a
special education tutor for two hours per
day. During this time, Jacob did not receive
the special reading instruction that the
eighth-grade IEP mandated.
52. On December 11, 2000, Jacob's
PET met to conduct a manifestation review.
53. The Farrins attended but did not
actively participate in the meeting,
maintaining that the manifestation review
and Jacob's expulsion were illegal.
54. Notwithstanding the Farrins'
objections, Ms. Christopher pressed ahead
with the meeting, and the school personnel
present determined that the drug-selling
incident was not a manifestation of Jacob's
disability.
55. In making its determination, the
PET did not consider the results of the Burks
test that had been conducted in 1998. The
test results had been mistakenly excluded
from the materials the PET reviewed.
56. The PET also adopted an
"expulsion IEP" at the December 11, 2000
meeting. The expulsion IEP supplanted
Jacob's regular school curriculum and IEP
with two hours per day of at-home, one-on-

one instruction in his core courses (reading,

English,
science,
geography
and
mathematics), and two hours per week of
one-on-one specialized reading instruction.
No provisions were made for replacing
Jacob's physical education, art or computer
courses.
Page 48
57. By informal arrangement, the
Farrins and Jacob's special education
teachers agreed that Jacob would receive
make-up reading instruction to compensate
for the instruction he had not received from
November 21st through December 11th.
58. Finally, the PET attempted to
arrange for an outside consultant to compile
the information necessary to complete a
functional behavioral assessment of Jacob.
The Farrins refused, insisting that the PET
perform the task itself.
59. To date, neither the PET nor an
outside evaluator has performed a functional
behavioral assessment of Jacob.
60. On December 12, 2000, Jacob's
parents requested an additional due process
hearing to challenge the legality and results
of the manifestation review.
61. The Maine Department of
Education appointed Peter H. Stewart, Esq.,
as the hearing officer for both due process
cases. He convened a hearing on January 3,
2001. The hearing record remained open
until January 10, 2001.
62. In testimony, Defendant's witnesses
rejected the notion that Jacob's behavior was
a manifestation of his disability, even
assuming the disability included a tendency
to act impulsively.
63. On January 5, 2001, Jacob returned
to school under the IDEA's "stay put"
provisions, having served forty-five days of
his expulsion.
F. The Hearing Officer's Determination
64. On February 19, 2001, the hearing
officer rendered his decision. His findings
were as follows:
a. The IDEA and its corresponding
regulations did not require that a
manifestation review be held prior to a
decision to expel a child with a disability
under local educational agency rules.

312

b. The delay in holding the

manifestation review did not affect Jacob's
access to FAPE or his parents' ability to
participate in the development of his IEP.
Moreover, the Farrins' refusal to cooperate
with Ms. Christopher's scheduling efforts
significantly contributed to the delay.
c. M.S.A.D. No. 59 carried its burden
of showing that the evidence supported the
PET's determination that Jacob's behavior
was not a manifestation of his disability.
Specifically, "there was no credible
connection established" between Jacob's
previously identified language disability and
the "impulsivity" that the Farrins insist
Jacob exhibits. See Hearing Officer's
Decision at 19.
d. The "expulsion IEP" provided Jacob
with FAPE. Although Jacob would not be
receiving art, computer and physical
education instruction, he would still be able
to "appropriately progress in the general
curriculum." Seeid. at 22.
e. The "stay put" provisions of the
IDEA did not apply to Jacob for the first
forty-five days of his expulsion.
65. The hearing officer specifically did
not address the following points:
a. Whether the PET's failure to consider
the Burks test results as evidence of Jacob's
alleged "impulsivity"
Page 49
was fatal to the manifestation determination
review.
b. Whether M.S.A.D. No. 59's alleged
failure to provide the Farrins with notice of
Jacob's impending change of placement
invalidated the School Board's expulsion
decision.
c. Whether the PET's failure to conduct
a functional behavioral assessment within
ten days of Jacob's expulsion was fatal to the
manifestation determination review.
66. On March 1, 2001, the Farrins appealed
the hearing officer's decision to this Court.
IV. DISCUSSION
The Plaintiffs have asserted a variety of
claims challenging the disciplinary action
taken against Jacob. The claims can be
broken down into three distinct categories:
procedural defects in conducting the

manifestation
review;
substantive
disagreement with the outcome of the
manifestation review; and other procedural
defects. The Court will briefly discuss the
claims and the legal arguments surrounding
each.
A. The Alleged Procedural Defects in
the Manifestation Review
[The
Court
rejects
procedural
challenges
to
the
manifestation
determination]
..
2. The Delay in Holding the
Manifestation Review
Plaintiffs also argue that the
manifestation review should have occurred
within ten school days of the decision to
expel Jacob, rather than twelve. Defendants
concede that ten days is the applicable time
limit, and that it was exceeded, but point the
finger at Plaintiffs to explain why the
meeting did not convene on time. As noted
above, there is evidence supporting
Defendant's allegation.
The Court's inquiry need not reach the
parties' attempts to cast blame, however.
The First Circuit's ruling in Roland M.
allows the court merely to address whether
the delay harmed the Plaintiffs. SeeRoland
M., 910 F.2d at 994. The hearing officer
found that the preponderance of the
evidence in this case failed to demonstrate
any harm flowing to the Plaintiffs as a result
of the late PET. The Court agrees. Despite
the delay, both parents attended the
manifestation review meeting, and had an
opportunity to participate in it (although
they chose not to). There is no evidence that
holding the meeting two days late affected
its outcome, or the method by which the
PET addressed the issues. Finally, it does
not appear that Jacob suffered any ill effects
from the tardiness of the meeting,
considering that his parents and teacher
arranged for him to receive remedial reading
instruction to make up for lost time.
In short, Plaintiffs have not presented
any evidence to give the Court reason to
believe that conducting the review two days
late impeded their ability to participate in
the process, or negatively affected Jacob in

313

any way. Applying the rule in Roland M.,

the Court finds that the delay in holding the
manifestation review was harmless and does
not warrant the annulment of Jacob's
expulsion.
3. The PET's Failure to Consider the
Results of the Burks Test
A PET must consider all information
relevant to making a decision when it
conducts a manifestation review. See 20
U.S.C. 1415(k) (4) (C). In this case,
Defendant did not include the results of the
1998 Burks Behavior Scale test in the
materials the PET considered in conducting
the manifestation review. Plaintiffs contend
that the evidence of a behavioral problem
contained in the Burks results was relevant
to the PET's determination, and that without
it the manifestation review was invalid. The
hearing officer did not address this point,
although Plaintiffs raised it in their due
process hearing briefs.
The Burks results were certainly
relevant. Therefore, the Court must examine
the impact the failure to provide the Burks
results had on the student's and parents'
rights. SeeRoland M., 910 F.2d at 994. If the
information would have caused the PET to
find that Jacob's behavior was indeed a
manifestation of his disability, then the
expulsion clearly caused an unwarranted
loss of educational benefits and interfered
with Jacob's access to FAPE.
Page 52
The preponderance of the evidence suggests
the opposite would have occurred, however.
There is no indication in the record that the
PET decision-makers would have given any
weight to the Burks test results. Therefore
the exclusion of the results from the
manifestation review was harmless, and
Plaintiffs' argument fails.
B. The Substance of the Manifestation
Determination Review
In addition to their objections to the
procedural irregularities surrounding the
manifestation review, Plaintiffs also
challenge both of the substantive decisions
made during the review. The Court
addresses each objection below.

1. The Adequacy of the Manifestation

Review
Plaintiffs contend that the hearing
officer erred in finding that the PET's
manifestation decision was correct. They
argue that the PET should have found that
Jacob's behavior was a manifestation of his
disability because his disability included a
tendency to act impulsively. Although
weighing a
previously undiagnosed
disability in a manifestation review is
permitted under the IDEA, the hearing
officer found no credible evidence to
support Plaintiffs' claims.
There is no need for the Court to
determine whether Jacob's alleged new
disability actually existed, because Plaintiffs
have failed to demonstrate by a
preponderance of the evidence that an
"impulsivity" problem such as the one they
describe would manifest itself in a decision
to sell marijuana. Plaintiffs apparently
assume that drug selling and "impulsivity"
are related. However, they have failed to
support their assumption with any concrete
evidence beyond suggesting that the
decision to sell drugs is such a poor one that
only a behavioral disability could prompt
Jacob to make it. Cf.Richland Sch. Dist,
2000 U.S. Dist. LEXIS 15162 at *13-16, 4246 (affirming hearing officer's finding upon
extensive expert witness testimony that child
had a previously undiagnosed disability).
Defendant, on the other hand, has
presented strong evidence that the tendency
to make impulsive decisions and the resolve
to peddle narcotics at school are not at all
synonymous. In particular, Defendant
showed that Jacob understood school rules
and that his actions involving the marijuana
took place over several hours, involving not
a single decision, but many individual ones.
These facts are completely antithetical to
Plaintiffs' impulsivity theory. See, e.g.,Doe,
115 F.3d at 1281-82 (finding that evidence
that child understood school rules and made
calculated decision to bring marijuana to
school defeated argument that child acted
impulsively). Therefore, the preponderance
of the evidence supports the conclusion that
even if the school had treated Jacob as

314

having a behavioral disorder characterized

by impulsive decision-making, the PET
would not have decided differently.
Therefore, the hearing officer's finding
affirming the manifestation review was
correct.[3]
Page 53
2. The Adequacy of the "Expulsion
IEP"
The Plaintiffs also disagree with the
hearing officer's finding that the so-called
"expulsion IEP" that the PET developed to
outline Jacob's out-of-school educational
program was adequate to provide Jacob with
FAPE. They argue that the lack of art,
computer and physical education instruction
rendered the IEP insufficient to meet the
requirements of the school's "general
curriculum." Defendant counters that art,
computers and physical education were not
part of the general curriculum, because they
were not courses that Jacob was required to
pass in order to advance to ninth grade.
Defendant also points out that the
regulations implementing the IDEA merely
require that the student be able to
"appropriately progress" in the general
curriculum, rather than "participate" in it.
Seeid. The hearing officer agreed with the
Defendant, basing his decision upon the
regulatory language.
The issue is whether art, computers and
physical education comprise a portion of
Jacob's in-school general curriculum for the
period he will spend out of school.[4] The
Maine education regulations require
instruction in all three of the subjects during
high school, but for limited periods of time
each.[5] Only one "credit" of art and
physical education is mandatory.[6] See 127
Me. Ed. Reg. 127.12. There is no credit
requirement for computer education. Seeid.
Students
must
merely
demonstrate
"computer skills," and the regulations leave
individual schools to develop their own
standards for proficiency. Seeid. In other
words, the exclusion of the three subjects
from Jacob's expulsion IEP does not
foreclose his ability to obtain the credits or
skills needed to graduate later. Thus, the
expulsion IEP allows Jacob to "progress" in

the general curriculum, and Plaintiffs'

argument is without merit.
C. Other Procedural Defects
[The Court rejects other procedural claims
by the family]
..
Page 55
V. CONCLUSIONS OF LAW
Pursuant to the Findings of Fact and
Discussion above, the Court adopts the
following Conclusions of Law:
1. The hearing officer did not err in
finding that a manifestation review need not
be held prior to a local educational agency
decision to change the placement of a child
with a disability pursuant to generally
applicable school disciplinary rules. See 20
U.S.C. 1415(k) (1) (A), (k) (4) (A) (ii).
2. The hearing officer did not err in
finding that the two-day delay in holding the
manifestation review was harmless and did
not warrant annulment of the expulsion.
SeeRoland M., 910 F.2d at 994.
3. The PET's failure to consider the
Burks test was harmless and does not
warrant annulment of the expulsion. Seeid.
4. The hearing officer did not err in
affirming the PET's finding that Jacob's
misbehavior was not a manifestation of his
disability. Seeid.
5. The hearing officer did not err in
finding that the "expulsion IEP" was
adequate to allow Jacob to appropriately
progress in the general curriculum. See 127
Me. Ed. Reg. 127.12.
.
VI. CONCLUSION
Pursuant to the above Findings of Fact
and Conclusions of Law, the Court
AFFIRMS the hearing officer's findings.
Furthermore, the Court ORDERS the
parties to proceed with a functional
behavioral assessment of Jacob as soon as
practicable. An outside consultant may be
employed to aid the PET in doing so.
SO ORDERED.
--------Notes:
[1] The IDEA defines a local educational
agency, in relevant part, as:

315

a public board of education or other public

authority legally constituted within a State
for either administrative control or direction
of, or to perform a service function for,
public elementary or secondary schools in a
city, county, township, school counties as
are recognized in a State as an
administrative agency for its public
elementary or district, or other political
subdivision of a State, or for such
combination of school districts or secondary
schools.
See 20 U.S.C. 1402(15).
[2] Under the federal scheme, the PET is
known as an "IEP team." See id. at
1414(d) (1) (B).
[3] The Court notes its reservation about the
Plaintiffs' right to argue to the hearing
officer that Jacob's disability included a
tendency to act impulsively, given their
failure to do so at the manifestation review.
The IDEA's procedures encourage a
cooperative process in which parents raise
concerns about their children's educational
difficulties to the PET. The Court fears that

allowing parents to remain silent at a

manifestation review, but permitting them to
raise objections to its outcome on appeal,
defeats the purpose of the scheme. It is not
clear to what extent the doctrine of waiver
applies
to
this
context.
See
generallyNorthern Wind, Inc. v. Daley, 200
F.3d 13, 18 (1st Cir. 1999).
[4] We must address whether the expulsion
IEP would be appropriate to replace Jacob's
ninth-grade general curriculum, since that is
the grade from which he would be expelled
if Defendant enforces his punishment.
[5] Local school agencies may define more
specific curricula. However, no evidence of
the curriculum in M.S.A.D. 59 has been
submitted in this case, so the Court must
rely on the regulations developed by the
Maine Department of Education pursuant to
20-A M.S.A. 7404.
[6] Sixteen credits are required to graduate
from high school. See 127 Me. Ed. Reg.
127.11. A credit equals one year's worth of
course work. See id. at 127.02.
---------

316

maintained by an educational agency or

institution or by a person acting for such
agency or institution." 1232g(a)(4)(A).
The definition of education records contains
an exception for "records of instructional,
supervisory, and administrative personnel . .
. which are in the sole possession of the
maker thereof and which are not accessible
or revealed to any other person except a
substitute." 1232g(a)(4)(B)(i). The precise
question for us is whether peer-graded
classroom work and assignments are
education records.
Three of respondent Kristja J. Falvo's
children are enrolled in Owasso Independent
School District No. I-011, in a suburb of
Tulsa, Oklahoma. The children's teachers,
like many teachers in this country, use peer
grading. In a typical case the students
exchange papers with each other and score
them according to the teacher's instructions,
then return the work to the student who
prepared it. The teacher may ask the
students to report their own scores. In this
case it appears the student could either call
out the score or walk to the teacher's desk
and reveal it in confidence, though by that
stage, of course, the score was known at
least to the one other student who did the
grading. Both the grading and the system of
calling out the scores are in contention here.
Respondent claimed the peer grading
embarrassed her children. She asked the
school district to adopt a uniform policy
banning peer grading and requiring teachers
either to grade assignments themselves or at
least to forbid students from grading papers
other than their own. The school district
declined to do so, and respondent brought a
class action pursuant to Rev. Stat. 1979,
42 U.S.C. 1983 (1994 ed., Supp. V),
against the school district, Superintendent
Dale
Page 430
Johnson, Assistant Superintendent Lynn
Johnson, and Principal Rick Thomas
(petitioners). Respondent alleged the school
district's grading policy violated FERPA and
other laws not relevant here. The United

Page 426
534 U.S. 426 (2002)
122 S.Ct. 934, 151 L.Ed.2d 896, 70 USLW
4123
OWASSO INDEPENDENT SCHOOL
DISTRICT NO. I-011, aka OWASSO
PUBLIC SCHOOLS, et al.
v.
FALVO, parent and next friend of her
minor children, PLETAN, et al.
Case No. 00-1073
United States Supreme Court
February 19, 2002
Argued November 27, 2001
CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE
TENTH CIRCUIT
Justice Kennedy delivered the opinion
of the Court.
Teachers sometimes ask students to
score each other's tests, papers, and
assignments as the teacher explains the
correct answers to the entire class.
Respondent contends this practice, which
the parties refer to as peer grading, violates
the Family Educational Rights and Privacy
Act of 1974 (FERPA or Act), 88 Stat. 571,
20 U.S.C. 1232g. We took this case to
resolve the issue.
I
Under FERPA, schools and
educational agencies receiving federal
financial assistance must comply with
certain conditions. 1232g(a)(3). One
condition specified in the Act is that
sensitive information about students may not
be released without parental consent. The
Act states that federal funds are to be
withheld from school districts that have "a
policy or practice of permitting the release
of education records (or personally
identifiable information contained
Page 429
therein . . . ) of students without the written
consent of their parents." 1232g(b)(1). The
phrase "education records" is defined, under
the Act, as "records, files, documents, and
other materials" containing information
directly related to a student, which "are

317

States District Court for the Northern

District of Oklahoma granted summary
judgment in favor of the school district's
position. The court held that grades put on
papers by another student are not, at that
stage, records "maintained by an educational
agency or institution or by a person acting
for such agency or institution," 20 U.S.C.
1232g(a)(4)(A), and thus do not constitute
"education records" under the Act. On this
reasoning it ruled that peer grading does not
violate FERPA.
The Court of Appeals for the Tenth
Circuit reversed. 233 F.3d 1203 (2000).
FERPA is directed to the conditions schools
must meet to receive federal funds, and as
an initial matter the court considered
whether the Act confers a private right of
action upon students and parents if the
conditions are not met. Despite the absence
of an explicit authorization in the Act
conferring a cause of action on private
parties, the court held respondent could sue
to enforce FERPA's terms under 42 U.S.C.
1983. 233 F.3d, at 1211-1213. Turning to
the merits, the Court of Appeals held that
peer grading violates the Act. The grades
marked by students on each other's work, it
held, are education records protected by the
statute, so the very act of grading was an
impermissible release of the information to
the student grader. Id., at 1216.
We granted certiorari to decide whether
peer grading violates FERPA. 533 U.S. 927
(2001). Finding no violation of the Act, we
reverse.
II
At the outset, we note it is an open
question whether FERPA provides private
parties, like respondent, with a cause of
action enforceable under 1983. We have
granted certiorari on this issue in another
case. See Gonzaga Univ. v. Doe, post, p.
1103. The parties, furthermore, did
Page 431
not contest the 1983 issue before the Court
of Appeals. That court raised the issue sua
sponte, and petitioners did not seek
certiorari on the question. We need not
resolve the question here as it is our practice
"to decide cases on the grounds raised and

considered in the Court of Appeals and

included in the question on which we
granted certiorari." Bragdon v. Abbott, 524
U.S. 624, 638 (1998). In these circumstances
we assume, but without so deciding or
expressing an opinion on the question, that
private parties may sue an educational
agency under 1983 to enforce the
provisions of FERPA here at issue. Though
we leave open the 1983 question, the
Court has subject-matter jurisdiction
because respondent's federal claim is not so
"completely devoid of merit as not to
involve a federal controversy." Steel Co. v.
Citizens for Better Environment, 523 U.S.
83, 89 (1998) (citation omitted). With these
preliminary observations concluded, we turn
to the merits.
The parties appear to agree that if an
assignment becomes an education record the
moment a peer grades it, then the grading, or
at least the practice of asking students to call
out their grades in class, would be an
impermissible release of the records under
1232g(b)(1). Tr. of Oral Arg. 21. Without
deciding the point, we assume for the
purposes of our analysis that they are
correct. The parties disagree, however,
whether peer-graded assignments constitute
education records at all. The papers do
contain information directly related to a
student, but they are records under the Act
only when and if they "are maintained by an
educational agency or institution or by a
person acting for such agency or institution."
1232g(a)(4)(A).
Petitioners, supported by the United
States as amicus curiae, contend the
definition covers only institutional records
namely, those materials retained in a
permanent file as a matter of course. They
argue that records "maintained by an
educational agency or institution" generally
would include final course grades, student
grade point averages,
Page 432
standardized test scores, attendance records,
counseling records, and records of
disciplinary actionsbut not student
homework or classroom work. Brief for

318

Petitioners 17; Brief for United States as

Amicus Curiae 14.
Respondent, adopting the reasoning of
the Court of Appeals, contends studentgraded assignments fall within the definition
of education records. That definition
contains an exception for "records of
instructional,
supervisory,
and
administrative personnel . . . which are in
the sole possession of the maker thereof and
which are not accessible or revealed to any
other person except a substitute."
1232g(a)(4)(B)(i). The Court of Appeals
reasoned that if grade books are not
education records, then it would have been
unnecessary for Congress to enact the
exception. Grade books and the grades
within,
the
court
concluded,
are
"maintained" by a teacher and so are
covered by FERPA. 233 F.3d, at 1215. The
court recognized that teachers do not
maintain the grades on individual student
assignments until they have recorded the
result in the grade books. It reasoned,
however, that if Congress forbids teachers to
disclose students' grades once written in a
grade book, it makes no sense to permit the
disclosure immediately beforehand. Id., at
1216. The court thus held that student
graders maintain the grades until they are
reported to the teacher. Ibid.
The Court of Appeals' logic does not
withstand scrutiny. Its interpretation,
furthermore, would effect a drastic alteration
of the existing allocation of responsibilities
between
States
and
the
National
Government in the operation of the Nation's
schools. We would hesitate before
interpreting the statute to effect such a
substantial change in the balance of
federalism unless that is the manifest
purpose of the legislation. This principle
guides our decision.
Two statutory indicators tell us that the
Court of Appeals erred in concluding that an
assignment satisfies the definition of
education records as soon as it is graded by
another student. First, the student papers are
not, at that stage,
Page 433

"maintained" within the meaning of

1232g(a)(4)(A). The ordinary meaning of
the word "maintain" is "to keep in existence
or continuance; preserve; retain." Random
House Dictionary of the English Language
1160 (2d ed. 1987). Even assuming the
teacher's grade book is an education
record a point the parties contest and one
we do not decide here the score on a
student-graded assignment is not "contained
therein," 1232g(b)(1), until the teacher
records it. The teacher does not maintain the
grade while students correct their peers'
assignments or call out their own marks. Nor
do the student graders maintain the grades
within the meaning of 1232g(a)(4)(A).
The word "maintain" suggests FERPA
records will be kept in a filing cabinet in a
records room at the school or on a
permanent secure database, perhaps even
after the student is no longer enrolled. The
student graders only handle assignments for
a few moments as the teacher calls out the
answers. It is fanciful to say they maintain
the papers in the same way the registrar
maintains a student's folder in a permanent
file.
The Court of Appeals was further
mistaken in concluding that each student
grader is "a person acting for" an
educational institution for purposes of
1232g(a)(4)(A). 233 F.3d, at 1216. The
phrase "acting for" connotes agents of the
school, such as teachers, administrators, and
other school employees. Just as it does not
accord with our usual understanding to say
students are "acting for" an educational
institution when they follow their teacher's
direction to take a quiz, it is equally
awkward to say students are "acting for" an
educational institution when they follow
their teacher's direction to score it.
Correcting a classmate's work can be as
much a part of the assignment as taking the
test itself. It is a way to teach material again
in a new context, and it helps show students
how to assist and respect fellow pupils. By
explaining the answers to the class as the
students correct the papers, the teacher not
only reinforces the lesson but also discovers
whether the students have understood

319

assistants" as the personnel responsible for

the custody of the records,
Page 435
FERPA implies that education records are
institutional records kept by a single central
custodian, such as a registrar, not individual
assignments handled by many student
graders in their separate classrooms.
FERPA also requires recipients of
federal funds to provide parents with a
hearing at which they may contest the
accuracy of their child's education records.
1232g(a)(2). The hearings must be
conducted "in accordance with regulations
of the Secretary," ibid., which in turn
require adjudication by a disinterested
official and the opportunity for parents to be
represented by an attorney. 34 CFR 99.22
(2001). It is doubtful Congress would have
provided parents with this elaborate
procedural machinery to challenge the
accuracy of the grade on every spelling test
and art project the child completes.
Respondent's construction of the term
"education records" to cover student
homework or classroom work would impose
substantial burdens on teachers across the
country. It would force all instructors to take
time, which otherwise could be spent
teaching and in preparation, to correct an
assortment of daily student assignments.
Respondent's view would make it much
more difficult for teachers to give students
immediate guidance. The interpretation
respondent urges would force teachers to
abandon other customary practices, such as
group grading of team assignments. Indeed,
the logical consequences of respondent's
view are all but unbounded. At argument,
counsel for respondent seemed to agree that
if a teacher in any of the thousands of
covered classrooms in the Nation puts a
happy face, a gold star, or a disapproving
remark on a classroom assignment, federal
law does not allow other students to see it.
Tr. of Oral Arg. 40.
We doubt Congress meant to intervene
in this drastic fashion with traditional state
functions. Under the Court of Appeals'
interpretation of FERPA, the federal power

Page 434
the material and are ready to move on. We
do not think FERPA prohibits these
educational techniques. We also must not
lose sight of the fact that the phrase "by a
person acting for [an educational]
institution" modifies "maintain." Even if one
were to agree students are acting for the
teacher when they correct the assignment,
that is different from saying they are acting
for the educational institution in maintaining
it.
Other sections of the statute support our
interpretation. See Davis v. Michigan Dept.
of Treasury, 489 U.S. 803, 809 (1989) ("It
is a fundamental canon of statutory
construction that the words of a statute must
be read in their context and with a view to
their place in the overall statutory scheme").
FERPA, for example, requires educational
institutions to "maintain a record, kept with
the education records of each student."
1232g(b)(4)(A). This record must list those
who have requested access to a student's
education records and their reasons for
doing so. Ibid. The record of access "shall
be available only to parents, [and] to the
school official and his assistants who are
responsible for the custody of such records."
Ibid.
Under the Court of Appeals' broad
interpretation of education records, every
teacher would have an obligation to keep a
separate record of access for each student's
assignments. Indeed, by that court's logic,
even students who grade their own papers
would bear the burden of maintaining
records of access until they turned in the
assignments. We doubt Congress would
have imposed such a weighty administrative
burden on every teacher, and certainly it
would not have extended the mandate to
students.
Also, FERPA requires "a record" of
access for each pupil. This single record
must be kept "with the education records."
This suggests Congress contemplated that
education records would be kept in one
place with a single record of access. By
describing a "school official" and "his

320

would exercise minute control over specific

teaching methods and
Page 436
instructional dynamics in classrooms
throughout the country. The Congress is not
likely to have mandated this result, and we
do not interpret the statute to require it.
For these reasons, even assuming a
teacher's grade book is an education record,
the Court of Appeals erred, for in all events
the grades on students' papers would not be
covered under FERPA at least until the
teacher has collected them and recorded
them in his or her grade book. We limit our
holding to this narrow point, and do not
decide the broader question whether the
grades on individual student assignments,
once they are turned in to teachers, are
protected by the Act.
The judgment of the Court of Appeals
is reversed, and the case is remanded for
further proceedings consistent with this
opinion.
It is so ordered.
Justice Scalia, concurring in the
judgment.
I agree with the Court that peer-graded
student papers do not constitute "education
records" while they remain in the possession
of the peer grader because, as the Court
explains, a student who grades another's
work is not "a person acting for" the school
in the ordinary meaning of that phrase. Ante,
at 432, 433. I cannot agree, however, with
the other ground repeatedly suggested by the
Court: that education records include only
documents kept in some central repository at
the school. Ante, at 433 ("The word
'maintain' suggests FERPA records will be
kept in a filing cabinet in a records room at
the school or on a permanent secure
database . . . . It is fanciful to say [student
graders] maintain the papers in the same
way the registrar maintains a student's folder
in a permanent file"), 435 ("FERPA implies
that education records are institutional
records kept by a single central custodian,
such as a registrar . . .").
As the Court acknowledges, ante, at
429, 432, Congress expressly excluded from
the coverage of FERPA "records of

Page 437
instructional . . . personnel . . . which are in
the sole possession of the maker thereof and
which are not accessible or revealed to any
other person except a substitute," 20 U.S.C.
1232g(a)(4)(B)(i). Respondent argues that
this
exception,
which
presumably
encompasses many documents a teacher
might create and keep in the classroom,
including a grade book, would be rendered
superfluous if education records included
only "institutional records kept by a single
central custodian, such as a registrar." We
do not, of course, read statutes in such
fashion as to render entire provisions
inoperative. United States v. Nordic Village,
Inc., 503 U.S. 30, 35-36 (1992).
The Court does not explain why
respondent's argument is not correct, and yet
continues to rely upon the "central
custodian" principle that seemingly renders
the exception for "records of instructional . .
. personnel" superfluous. Worse still, while
thus relying upon a theory that plainly
excludes teachers' grade books, the Court
protests that it is not deciding whether grade
books are education records, ante, at 433. In
my view, the Court's endorsement of a
"central custodian" theory of records is
unnecessary for the decision of this case,
seemingly contrary to 1232g(a)(4)(B)(i),
and (when combined with the Court's
disclaimer of any view upon the status of
teachers' grade books) incurably confusing.
For these reasons, I concur only in the
judgment of the Court.
--------------Notes:
[*] Briefs of amici curiae urging reversal
were filed for the National Education
Association et al. by Robert H. Chanin and
Andrew D. Roth; for the National School
Boards Association et al. by Julie
Underwood, Julie E. Lewis, Sheldon E.
Steinbach, and Martin Michaelson; for the
Oklahoma Education Association by
Richard B. Wilkinson and Brandon R. Webb;
and for the Reporters Committee for
Freedom of the Press et al. by Gregg P.
Leslie, Lucy A. Dalglish, and S. Mark
Goodman.

321

Briefs of amici curiae urging affirmance

were filed for the Capitol Resource Institute
et al. by Richard D. Ackerman and Gary G.
Kreep; for the Council of Counseling
Psychology Training Programs et al. by

Dennis Owens; and for the Eagle Forum

Education & Legal Defense Fund by Karen
Tripp and Phyllis Schlafly.
---------------

322

Page 397
442 U.S. 397 (1979)
99 S.Ct. 2361, 60 L.Ed.2d 980
Southeastern Community College
v.
Davis
No. 78-711
United States Supreme Court
June 11, 1979
Argued April 23, 1979
CERTIORARI TO THE UNITED
STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
POWELL, J., delivered the opinion for
a unanimous Court.
Page 400
POWELL, J., lead opinion
MR. JUSTICE POWELL delivered the
opinion of the Court.
This case presents a matter of first
impression for this Court: Whether 504 of
the Rehabilitation Act of 1973, which
prohibits
discrimination
against
an
"otherwise
qualified
handicapped
individual" in federally funded programs
"solely by reason of his handicap," forbids
professional schools from imposing physical
qualifications for admission to their clinical
training programs.
I
Respondent, who suffers from a serious
hearing disability, seeks to be trained as a
registered nurse. During the 1973-1974
academic year, she was enrolled in the
College Parallel program of Southeastern
Community College, a state institution that
receives federal funds. Respondent hoped to
progress to Southeastern's Associate Degree
Nursing program, completion of which
would make her eligible for state
certification as a registered nurse. In the
course of her application to the nursing
program, she was interviewed by a member
of the nursing faculty. It became apparent
that respondent had difficulty understanding
questions asked, and on inquiry, she
acknowledged a history of hearing problems
and dependence on a hearing aid. She was
advised to consult an audiologist.

Page 401
On the basis of an examination at Duke
University Medical Center, respondent was
diagnosed as having a "bilateral, sensorineural hearing loss." App 127a. A change in
her hearing aid was recommended, as a
result of which it was expected that she
would be able to detect sounds "almost as
well as a person would who has normal
hearing." Id. at 127a-128a. But this
improvement would not mean that she could
discriminate among sounds sufficiently to
understand normal spoken speech. Her lipreading skills would remain necessary for
effective communication:
While wearing the hearing aid, she is well
aware of gross sounds occurring in the
listening environment. However, she can
only be responsible for speech spoken to
her, when the talker gets her attention and
allows her to look directly at the talker.
Id. at 128a.
Southeastern next consulted Mary
McRee, Executive Director of the North
Carolina Board of Nursing. On the basis of
the
audiologist's
report,
McRee
recommended that respondent not be
admitted to the nursing program. In McRee's
view, respondent's hearing disability made it
unsafe for her to practice as a nurse.[1] In
addition, it would be impossible for
[99 S.Ct. 2365] respondent to participate
safely in the normal clinical training
program, and those modifications that would
be necessary to enable safe participation
would prevent her from
Page 402
realizing the benefits of the program: "To
adjust patient learning experiences in
keeping with [respondent's] hearing
limitations could, in fact, be the same as
denying her full learning to meet the
objectives of your nursing programs." Id. at
132a-133a.
After respondent was notified that she
was not qualified for nursing study because
of her hearing disability, she requested
reconsideration of the decision. The entire
nursing staff of Southeastern was assembled,

323

and McRee again was consulted. McRee

repeated her conclusion that, on the basis of
the available evidence, respondent "has
hearing limitations which could interfere
with her safely caring for patients." Id. at
139a. Upon further deliberation, the staff
voted to deny respondent admission.
Respondent then filed suit in the United
States District Court for the Eastern District
of North Carolina, alleging both a violation
of 504 of the Rehabilitation Act of 1973, 7
Stat. 394, as amended, 29 U.S.C. 794
(1976 ed., Supp. III),[2]
Page 403
and a denial of equal protection and due
process. After a bench trial, the District
Court entered judgment in favor of
Southeastern. 424 F.Supp. 1341 (1976). It
confirmed the findings of the audiologist
that, even with a hearing aid, respondent
cannot understand speech directed to her
except through lip-reading, and further
found:
[I]n many situations, such as an operation
room intensive care unit or post-natal care
unit, all doctors and nurses wear surgical
masks which would make lip-reading
impossible. Additionally, in many situations,
a Registered Nurse would be required to
instantly follow the physician's instructions
concerning procurement of various types of
instruments and drugs where the physician
would be unable to get the nurse's attention
by other than vocal means.
Id. at 1343. Accordingly, the court
concluded:
[Respondent's] handicap actually prevents
her from safely performing in both her
training program and her proposed
profession. The trial testimony indicated
numerous situations where [respondent's]
particular disability would render her unable
to function properly. Of particular concern
to the court in this case is the potential of
danger to future patients in such situations.
Id. at 1345.
Based on these findings, the District
Court concluded that respondent was not an
"otherwise
qualified
handicapped
individual" protected against discrimination
by 504. In its view,

[o]therwise qualified, can only be read to

mean otherwise able to
[99 S.Ct. 2366] function sufficiently in the
position sought in spite of the handicap, if
proper training and facilities are suitable and
available.
424 F.Supp. at 1345. Because
respondent's disability would prevent her
from
functioning
"sufficiently"
in
Southeastern's nursing program, the court
Page 404
held that the decision to exclude her was not
discriminatory within the meaning of
504.[3]
On appeal, the Court of Appeals for the
Fourth Circuit reversed. 574 F.2d 1158
(1978). It did not dispute the District Court's
findings of fact, but held that the court had
misconstrued 504. In light of
administrative regulations that had been
promulgated while the appeal was pending,
see 42 Fed.Reg. 22676 (1977),[4] the
appellate court believed that 504 required
Southeastern to "reconsider plaintiff's
application for admission to the nursing
program without regard to her hearing
ability." 574 F.2d at 1160. It concluded that
the District Court had erred in taking
respondent's handicap into account in
determining whether she was "otherwise
qualified" for the program, rather than
confining its inquiry to her "academic and
technical qualifications." Id. at 1161. The
Court of Appeals also suggested that 504
required "affirmative conduct" on the part of
Southeastern to modify its program to
accommodate the disabilities of applicants,
"even when such modifications become
expensive." 574 F.2d at 1162.
Because of the importance of this issue
to the many institutions covered by 504,
we granted certiorari. 439 U.S. 1065 (1979).
We now reverse.[5]
Page 405
II
As previously noted, this is the first
case in which this Court has been called
upon to interpret 504. It is elementary that
"[t]he starting point in every case involving
construction of a statute is the language
itself." Blue Chip Stamps v. Manor Drug

324

Stores, 421 U.S. 723, 756 (1975)

(POWELL, J., concurring); see Greyhound
Corp. v. Mt. Hood Stages, Inc., 437 U.S.
322, 30 (1978); Santa Fe Industries, Inc. v.
Green, 430 U.S. 462, 472 (1977). Section
504, by its terms, does not compel
educational institutions to disregard the
disabilities of handicapped individuals or to
make substantial modifications in their
programs to allow disabled persons to
participate. Instead, it requires only that an
"otherwise
qualified
handicapped
individual" not be excluded from
participation in a federally funded program
"solely by reason of his handicap,"
indicating only that mere possession of a
handicap is not a permissible ground for
assuming an inability to function in a
particular context.[6]
Page 406
The court below, however, believed
that the "otherwise qualified" persons
protected by 504 include those who would
be able to meet the requirements of a
particular program in every respect except as
to limitations imposed by their handicap.
See 574 F.2d at 1160. Taken literally, this
holding would prevent an institution from
taking into account any limitation resulting
from the handicap, however disabling. It
assumes, in effect, that a person need not
meet legitimate physical requirements in
order to be "otherwise qualified." We think
the understanding of the District Court is
closer to the plain meaning of the statutory
language. An otherwise qualified person is
one who is able to meet all of a program's
requirements in spite of his handicap.
The regulations promulgated by the
Department of HEW to interpret 504
reinforce, rather than contradict, this
conclusion. According to these regulations,
a "[q]ualified handicapped person" is,
[w]ith respect to post-secondary and
vocational
education
services,
a
handicapped person who meets the
academic and technical standards requisite
to admission or participation in the
[school's] education program or activity. . . .
45 CFR 84.3(k)(3) (1978). An
explanatory note states:

The term "technical standards" refers to all

nonacademic admissions criteria that are
essential to participation in the program in
question.
45 CFR pt. 84, App A, p. 405 (1978)
(emphasis supplied).
Page 407
A further note emphasizes that legitimate
physical qualifications may be essential to
participation in particular programs.[7] We
think it clear, therefore, that HEW interprets
the "other" qualifications which a
handicapped person may be required to meet
as
including
necessary
physical
qualifications.
III
The remaining question is whether the
physical
qualifications
Southeastern
demanded of respondent might not be
necessary for participation in its nursing
program. It is not open to dispute that, as
Southeastern's Associate Degree Nursing
program currently is constituted, the ability
to understand speech without reliance on lipreading is necessary for patient safety during
the clinical phase of the program. As the
District Court found, this ability also is
indispensable for many of the functions that
a registered nurse performs.
Respondent
[99 S.Ct. 2368] contends nevertheless that
504,
properly
interpreted,
compels
Southeastern to undertake affirmative action
that would dispense with the need for
effective oral communication. First, it is
suggested that respondent can be given
individual supervision by faculty members
whenever she attends patients directly.
Moreover, certain required courses might be
dispensed with altogether for respondent. It
is not
Page 408
necessary, she argues, that Southeastern
train her to undertake all the tasks a
registered nurse is licensed to perform.
Rather, it is sufficient to make 504
applicable if respondent might be able to
perform satisfactorily some of the duties of a
registered nurse or to hold some of the
positions available to a registered nurse.[8]

325

Respondent finds support for this

argument in portions of the HEW
regulations discussed above. In particular, a
provision applicable to post-secondary
educational programs requires covered
institutions to make "modifications" in their
programs to accommodate handicapped
persons, and to provide "auxiliary aids" such
as sign language interpreters.[9] Respondent
Page 409
argues that this regulation imposes an
obligation to ensure full participation in
covered
programs
by
handicapped
individuals and, in particular, requires
Southeastern to make the kind of
adjustments that would be necessary to
permit her safe participation in the nursing
program.
We note first that, on the present record,
it appears unlikely respondent could benefit
from any affirmative action that the
regulation reasonably could be interpreted as
requiring. Section 84.44(d)(2), for example,
explicitly excludes "devices or services of a
personal nature" from the kinds of auxiliary
aids a school must provide a handicapped
individual. Yet the only evidence in the
record indicates that nothing less than close,
individual attention by a nursing instructor
would be sufficient to ensure patient
[99 S.Ct. 2369] safety if respondent took
part in the clinical phase of the nursing
program. See 424 F.Supp. at 1346.
Furthermore, it also is reasonably clear that
84.44(a) does not encompass the kind of
curricular changes that would be necessary
to accommodate respondent in the nursing
program. In light of respondent's inability to
function in clinical courses without close
supervision, Southeastern, with prudence,
could
Page 410
allow her to take only academic classes.
Whatever benefits respondent might realize
from such a course of study, she would not
receive even a rough equivalent of the
training a nursing program normally gives.
Such a fundamental alteration in the nature
of a program is far more than the
"modification" the regulation requires.

Moreover, an interpretation of the

regulations that required the extensive
modifications
necessary
to
include
respondent in the nursing program would
raise grave doubts about their validity. If
these regulations were to require substantial
adjustments in existing programs beyond
those necessary to eliminate discrimination
against otherwise qualified individuals, they
would do more than clarify the meaning of
504. Instead, they would constitute an
unauthorized extension of the obligations
imposed by that statute.
The language and structure of the
Rehabilitation Act of 1973 reflect a
recognition by Congress of the distinction
between the evenhanded treatment of
qualified
handicapped
persons
and
affirmative efforts to overcome the
disabilities caused by handicaps. Section
501(b), governing the employment of
handicapped individuals by the Federal
Government, requires each federal agency to
submit "an affirmative action program plan
for the hiring, placement, and advancement
of handicapped individuals. . . ." These plans
"shall include a description of the extent to
which and methods whereby the special
needs of handicapped employees are being
met." Similarly, 503(a), governing hiring
by federal contractors, requires employers to
"take affirmative action to employ and
advance
in
employment
qualified
handicapped individuals. . . ." The President
is required to promulgate regulations to
enforce this section.
Under 501(c) of the Act, by contrast,
state agencies such as Southeastern are only
"encourage[d] . . . to adopt and implement
such policies and procedures." Section 504
does not refer at all to affirmative action,
and, except as it applies to
Page 411
federal employers, it does not provide for
implementation by administrative action. A
comparison of these provisions demonstrates
that Congress understood accommodation of
the needs of handicapped individuals may
require affirmative action and knew how to
provide for it in those instances where it
wished to do so.[10]

326

Although an agency's interpretation of

the statute under which it operates is entitled
to some deference,
this deference is constrained by our
obligation to honor the clear meaning of a
statute, as revealed by its language, purpose,
and history.
Teamsters v. Daniel, 439 U.S. 551, 566
n. 20 (1979). Here, neither the language,
purpose, nor history of 504 reveals an
intent to impose an affirmative action
obligation on all recipients of federal
funds.[11] Accordingly, we hold that, even
if
Page 412
HEW has attempted to create such an
obligation itself, it lacks the authority to do
so.
IV
We do not suggest that the line between
a lawful refusal to extend affirmative action
and
illegal
discrimination
against
handicapped persons always will be clear. It
is possible to envision situations where an
insistence on continuing past requirements
and practices might arbitrarily deprive
genuinely qualified handicapped persons of
the opportunity to participate in a covered
program. Technological advances can be
expected to enhance opportunities to
rehabilitate the handicapped or otherwise to
qualify them for some useful employment.
Such advances also may enable attainment
of these goals without imposing undue
financial and administrative burdens upon a
State. Thus, situations may arise where a
Page 413
refusal to modify an existing program might
become unreasonable and discriminatory.
Identification of those instances where a
refusal to accommodate the needs of a
disabled person amounts to discrimination
against the handicapped continues to be an
important responsibility of HEW.
In this case, however, it is clear that
Southeastern's unwillingness to make major
adjustments in its nursing program does not
constitute
such
discrimination.
The
uncontroverted testimony of several
members of Southeastern's staff and faculty
established that the purpose of its program

was to train persons who could serve the

nursing profession in all customary ways.
See, e.g., App. 35a, 52a, 53a, 71a, 74a. This
type of purpose, far from reflecting any
animus against handicapped individuals is,
shared by many. if not most. of the
institutions that train persons to render
professional service. It is undisputed that
respondent could not participate in
Southeastern's nursing program unless the
standards were substantially lowered.
Section 504 imposes no requirement upon
an educational institution to lower or to
effect substantial modifications
[99 S.Ct. 2371] of standards to
accommodate a handicapped person.[12]
Page 414
One may admire respondent's desire
and determination to overcome her
handicap, and there well may be various
other types of service for which she can
qualify. In this case, however, we hold that
there was no violation of 504 when
Southeastern concluded that respondent did
not qualify for admission to its program.
Nothing in the language or history of 504
reflects an intention to limit the freedom of
an educational institution to require
reasonable physical qualifications for
admission to a clinical training program.
Nor has there been any showing in this case
that any action short of a substantial change
in Southeastern's program would render
unreasonable the qualifications it imposed.
V
Accordingly, we reverse the judgment
of the court below, and remand for
proceedings consistent with this opinion.
So ordered.
--------Notes:
[1] McRee also wrote that respondent's
hearing disability could preclude her
practicing safely in "any setting" allowed by
"a license as L[icensed] P[ractical] N[urse]."
App. 132a. Respondent contends that,
inasmuch as she already was licensed as a
practical nurse, McRee's opinion was
inherently incredible. But the record
indicates that respondent had "not worked as
a licensed practical nurse except to do a little

327

bit of private duty," id. at 32a, and had not

done that for several years before applying
to Southeastern. Accordingly, it is at least
possible to infer that respondent in fact
could not work safely as a practical nurse, in
spite of her license to do so. In any event,
we note the finding of the District Court that
a Licensed Practical Nurse, unlike a
Licensed Registered Nurse, operates under
constant supervision, and is not allowed to
perform medical tasks which require a great
degree of technical sophistication.
424 F.Supp. 1341, 1342-1343 (EDNC
1976).
[2] The statute, as set forth in 29 U.S.C.
794 (1976 ed., Supp. III), provides in full:
No otherwise qualified handicapped
individual in the United States, as defined in
section 706(7) of this title, shall, solely by
reason of his handicap, 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 or under any program
or activity conducted by any Executive
agency or by the United States Postal
Service. The head of each such agency shall
promulgate such regulations as may be
necessary to carry out the amendments to
this section made by the Rehabilitation,
Comprehensive
Services,
and
Developmental Disabilities Act of 1978.
Copies of any proposed regulation shall be
submitted to appropriate authorizing
committees of the Congress, and such
regulation may take effect no earlier than the
thirtieth day after the date on which such
regulation is so submitted to such
committees.
The italicized portion of the section was
added by 119 of the Rehabilitation,
Comprehensive
Services,
and
Developmental Disabilities Amendments of
1978, 92 Stat. 2982. Respondent asserts no
claim under this portion of the statute.
[3] The District Court also dismissed
respondent's constitutional claims. The
Court of Appeals affirmed that portion of
the order, and respondent has not sought
review of this ruling.

[4] Relying on the plain language of the Act,

the Department of Health, Education, and
Welfare (HEW) at first did not promulgate
any regulations to implement 504. In a
subsequent suit against HEW, however, the
United States District Court for the District
of Columbia held that Congress had
intended regulations to be issued, and
ordered HEW to do so. Cherry v. Mathews,
419 F.Supp. 922 (1976). The ensuing
regulations currently are embodied in 45
CFR pt. 84 (1978).
[5] In addition to challenging the
construction of 504 by the Court of
Appeals, Southeastern also contends that
respondent cannot seek judicial relief for
violations of that statute, in view of the
absence of any express private right of
action. Respondent asserts that, whether or
not 504 provides a private action, she may
maintain her suit under 42 U.S.C. 1983. In
light of our disposition of this case on the
merits, it is unnecessary to address these
issues, and we express no views on them.
See Norton v. Mathews, 427 U.S. 524, 529531 (1976); Moor v. County of Alameda,
411 U.S. 693, 715 (1973); United States v.
Augenblick, 393 U.S. 348, 351-352 (1969).
[6] The Act defines "handicapped
individual" as follows:
The term "handicapped individual" means
any individual who (A) has a physical or
mental disability which for such individual
constitutes or results in a substantial
handicap to employment and (B) can
reasonably be expected to benefit in terms of
employability from vocational rehabilitation
services provided pursuant to subchapters I
and III of this chapter. For the purposes of
subchapters IV and V of this chapter, such
term means any person who (A) has a
physical or mental impairment which
substantially limits one or more of such
person's major life activities, (B) has a
record of such an impairment, or (C) is
regarded as having such an impairment.
7(6) of the Rehabilitation Act of 1973, 87
Stat. 361, as amended, 88 Stat. 1619, 89
Stat. 2-5, 29 U.S. c. 706(6).
This definition comports with our
understanding of 504. A person who has a

328

record of, or is regarded as having, an

impairment may at present have no actual
incapacity at all. Such a person would be
exactly the kind of individual who could be
"otherwise qualified" to participate in
covered programs. And a person who suffers
from a limiting physical or mental
impairment still may possess other abilities
that permit him to meet the requirements of
various programs. Thus, it is clear that
Congress included among the class of
"handicapped" persons covered by 504 a
range of individuals who could be
"otherwise qualified." See S.Rep. No. 931297, pp. 339 (1974).
[7] The note states:
Paragraph (k) of 84.3 defines the term
"qualified handicapped person." Throughout
the regulation, this term is used instead of
the statutory term "otherwise qualified
handicapped person." The Department
believes that the omission of the word
"otherwise" is necessary in order to comport
with the intent of the statute because, read
literally, "otherwise" qualified handicapped
persons include persons who are qualified
except for their handicap, rather than in spite
of their handicap. Under such a literal
reading, a blind person possessing all the
qualifications for driving a bus except sight
could be said to be "otherwise qualified" for
the job of driving. Clearly, such a result was
not intended by Congress. In all other
respects, the terms "qualified" and
"otherwise qualified" are intended to be
interchangeable.
45 CFR pt. 84, App. A, p. 405 (1978).
[8] The court below adopted a portion of this
argument:
[Respondent's] ability to read lips aids her in
overcoming her hearing disability; however,
it was argued that, in certain situations, such
as in an operating room environment where
surgical masks are used, this ability would
be unavailing to her.
Be that as it may, in the medical community,
there does appear to be a number of settings
in which the plaintiff could perform
satisfactorily as an RN, such as in industry
or perhaps a physician's office. Certainly
[respondent] could be viewed as possessing

extraordinary insight into the medical and

emotional needs of those with hearing
disabilities.
If [respondent] meets all the other criteria
for admission in the pursuit of her RN
career, under the relevant North Carolina
statutes, N.C.Gen.Stat. 9158, et seq., it
should not be foreclosed to her simply
because she may not be able to function
effectively in all the roles which registered
nurses may choose for their careers.
574 F.2d 1158, 1161 n. 6 (1978).
[9] This regulation provides:
(a) Academic requirements. A recipient [of
federal funds] to which this subpart applies
shall make such modifications to its
academic requirements as are necessary to
ensure that such requirements do not
discriminate or have the effect of
discriminating, on the basis of handicap,
against a qualified handicapped applicant or
student. Academic requirements that the
recipient can demonstrate are essential to the
program of instruction being pursued by
such student or to any directly related
licensing requirement will not be regarded
as discriminatory within the meaning of this
section. Modifications may include changes
in the length of time permitted for the
completion
of
degree
requirements,
substitution of specific courses required for
the completion of degree requirements, and
adaptation of the manner in which specific
courses are conducted.
****
(d) Auxiliary aids. (1) A recipient to which
this subpart applies shall take such steps as
are necessary to ensure that no handicapped
student is denied the benefits of, excluded
from participation in, or otherwise subjected
to discrimination under the education
program or activity operated by the recipient
because of the absence of educational
auxiliary aids for students with impaired
sensory, manual, or speaking skills.
(2) Auxiliary aids may include taped texts,
interpreters or other effective methods of
making orally delivered materials available
to students with hearing impairments,
readers in libraries for students with visual
impairments, classroom equipment adapted

329

for use by students with manual

impairments, and other similar services and
actions. Recipients need not provide
attendants, individually prescribed devices,
readers for personal use or study, or other
devices or services of a personal nature.
45 CFR 84.44 (1978).
[10] Section 115(a) of the Rehabilitation,
Comprehensive
Services,
and
Developmental Disabilities Amendments of
1978 added to the 1973 Act a section
authorizing grants to state units for the
purpose of providing
such information and technical assistance
(including support personnel such as
interpreters for the deaf) as may be
necessary to assist those entities in
complying with this Act, particularly the
requirements of section 504.
92 Stat. 2971, 29 U.S.C. 775(a) (1976 ed.,
Supp. III). This provision recognizes that, on
occasion, the elimination of discrimination
might involve some costs; it does not imply
that the refusal to undertake substantial
changes in a program, by itself, constitutes
discrimination.
Whatever
effect
the
availability of these funds might have on
ascertaining the existence of discrimination
in some future case, no such funds were
available to Southeastern at the time
respondent sought admission to its nursing
program.
[11] The Government, in a brief amicus
curiae in support of respondent, cites a
Report of the Senate Committee on Labor
and Public Welfare on the 1974 amendments
to the 1973 Act and several statements by
individual Members of Congress during
debate on the 1978 amendments, some of
which indicate a belief that 504 requires
affirmative action. See Brief for United
States as Amicus Curiae 44-50. But these
isolated statements by individual Members
of Congress or its committees, all made after
the enactment of the statute under
consideration, cannot substitute for a clear
expression of legislative intent at the time of
enactment. Quern v. Mandley, 436 U.S. 725,
736 n. 10 (1978); Los Angeles Dept. of
Water & Power v. Manhart, 435 U.S. 702,
714 (1978). Nor do these comments, none of

which represents the will of Congress as a

whole, constitute subsequent "legislation"
such as this Court might weigh in construing
the meaning of an earlier enactment. Cf. Red
Lion Broadcasting Co. v. FCC, 395 U.S.
367, 380-381 (1969).
The Government also argues that various
amendments to the 1973 Act contained in
the Rehabilitation Act Amendments of 1978
further reflect Congress' approval of the
affirmative action obligation created by
HEW's regulations. But the amendment
most directly on point undercuts this
position. In amending 504, Congress both
extended that section's prohibition of
discrimination to "any program or activity
conducted by any Executive agency or by
the United States Postal Service" and
authorized administrative regulations to
implement only this amendment. See n. 2,
supra. The fact that no other regulations
were mentioned supports an inference that
no others were approved.
Finally, we note that the assertion by HEW
of the authority to promulgate any
regulations under 504 has been neither
consistent nor longstanding. For the first
three years after the section was enacted,
HEW maintained the position that Congress
had not intended any regulations to be
issued. It altered its stand only after having
been enjoined to do so. See n. 4, supra. This
fact substantially diminishes the deference
to be given to HEW's present interpretation
of the statute. See General Electric Co. v.
Gilbert, 429 U.S. 125, 143 (1976).
[12] Respondent contends that it is unclear
whether North Carolina law requires a
registered nurse to be capable of performing
all functions open to that profession in order
to obtain a license to practice, although
McRee, the Executive Director of the State
Board
of
Nursing,
had
informed
Southeastern that the law did so require. See
App. 138a-139a. Respondent further argues
that, even if she is not capable of meeting
North
Carolina's
present
licensing
requirements, she still might succeed in
obtaining a license in another jurisdiction.
Respondent's argument misses the point.
Southeastern's program, structured to train

330

persons who will be able to perform all

normal roles of a registered nurse, represents
a legitimate academic policy, and is
accepted by the State. In effect, it seeks to
ensure that no graduate will pose a danger to
the public in any professional role in which

he or she might be cast. Even if the licensing

requirements of North Carolina or some
other State are less demanding, nothing in
the Act requires an educational institution to
lower its standards.
---------

331

professional golf tournaments conducted on

three annual tours. About 200 golfers participate
in the PGA TOUR; about 170 in the NIKE
TOUR;[1] and about 100 in the SENIOR PGA
TOUR. PGA TOUR and NIKE TOUR
tournaments typically are 4-day events, played
on courses leased and operated by petitioner.
The entire field usually competes in two 18-hole
rounds played on Thursday and Friday; those
who survive the "cut" play on Saturday and
Sunday and receive prize money in amounts
determined by their aggregate scores for all four
rounds. The revenues generated by television,
admissions, concessions, and contributions from
cosponsors amount to about $300 million a year,
much of which is distributed in prize money.
There are various ways of gaining entry
into particular tours. For example, a player who
wins three NIKE TOUR events in the same year,
or is among the top-15 money winners on that
tour, earns the right to play in the PGA TOUR.
Additionally, a golfer may obtain a spot in an
official tournament through successfully
competing in "open" qualifying rounds, which
are conducted the week before each tournament.
Most participants, however, earn playing
privileges in the PGA TOUR or NIKE TOUR by
way of a three-stage qualifying tournament
known as the "Q-School."
Any member of the public may enter the QSchool by paying a $3,000 entry fee and
submitting two letters of reference
Page 666
from, among others, PGA TOUR or NIKE
TOUR members. The $3,000 entry fee covers
the players' greens fees and the cost of golf carts,
which are permitted during the first two stages,
but which have been prohibited during the third
stage since 1997. Each year, over a thousand
contestants compete in the first stage, which
consists of four 18-hole rounds at different
locations. Approximately half of them make it to
the second stage, which also includes 72 holes.
Around 168 players survive the second stage and
advance to the final one, where they compete
over 108 holes. Of those finalists, about a fourth
qualify for membership in the PGA TOUR, and
the rest gain membership in the NIKE TOUR.
The significance of making it into either tour is

Page 661
532 U.S. 661 (2001)
121 S.Ct. 1879, 149 L.Ed.2d 904
PGA TOUR, INC.
v.
MARTIN
Case No. 00-24
United States Supreme Court
May 29, 2001
Argued January 17, 2001
CERTIORARI
TO
THE
UNITED
STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT
.
Stevens, J., delivered the opinion of the
Court, in which Rehnquist, C. J., and O'Connor,
Kennedy, Souter, Ginsburg, and Breyer, JJ.,
joined. Scalia, J., filed a dissenting opinion, in
which Thomas, J., joined, post, p. 691.
H. Bartow Farr III argued the cause for
petitioner. With him on the briefs were Richard
G. Taranto, William J. Maledon, and Andrew D.
Hurtiwz.
Roy L. Reardon argued the cause for
respondent. With him on the brief was Joseph
M. McLaughlin.
Deputy Solicitor General Underwood
argued the cause for the United States as amicus
curiae urging affirmance. With her on the brief
were Solicitor General Waxman, Assistant
Attorney General Lee, Patricia A. Millett,
Jessica Dunsay Silver, and Thomas E. Chandler.
[*]
This case raises two questions concerning
the application of the Americans with
Disabilities Act of 1990, 104 Stat. 328, 42
U.S.C. 12101 et seq., to a gifted athlete: first,
whether the Act protects access to professional
golf tournaments by a qualified entrant with a
disability; and second, whether a
Page 665
disabled contestant may be denied the use of a
golf cart because it would "fundamentally alter
the
nature"
of
the
tournaments,

12182(b)(2)(A)(ii), to allow him to ride when all

other contestants must walk.
I
Petitioner PGA TOUR, Inc., a nonprofit
entity formed in 1968, sponsors and cosponsors

332

illuminated by the fact that there are about 25

million golfers in the country.[2]
Three sets of rules govern competition in
tour events. First, the "Rules of Golf," jointly
written by the United States Golf Association
(USGA) and the Royal and Ancient Golf Club
of Scotland, apply to the game as it is played,
not only by millions of amateurs on public
courses and in private country clubs throughout
the United States and worldwide, but also by the
professionals in the tournaments conducted by
petitioner, the USGA, the Ladies' Professional
Golf Association, and the Senior Women's Golf
Association. Those rules do not prohibit the use
of golf carts at any time.[3]
Second, the "Conditions of Competition
and Local Rules," often described as the "hard
card," apply specifically to petitioner's
professional tours. The hard cards for the PGA
Page 667
TOUR and NIKE TOUR require players to walk
the golf course during tournaments, but not
during open qualifying rounds.[4] On the
SENIOR PGA TOUR, which is limited to
golfers age 50 and older, the contestants may use
golf carts. Most seniors, however, prefer to
walk.[5]
Third, "Notices to Competitors" are issued
for particular tournaments and cover conditions
for that specific event. Such a notice may, for
example, explain how the Rules of Golf should
be applied to a particular water hazard or
manmade obstruction. It might also authorize the
use of carts to speed up play when there is an
unusual distance between one green and the next
tee.[6]
The basic Rules of Golf, the hard cards, and
the weekly notices apply equally to all players in
tour competitions. As one of petitioner's
witnesses explained with reference to "the
Masters Tournament, which is golf at its very
highest level, . . . the key is to have everyone tee
off on the first hole under exactly the same
conditions and all of them be tested over that 72hole event under the conditions that exist during
those four days of the event." App. 192.
II
Casey Martin is a talented golfer. As an
amateur, he won 17 Oregon Golf Association
junior events before he was 15,
Page 668

and won the state championship as a high school

senior. He played on the Stanford University
golf team that won the 1994 National Collegiate
Athletic Association (NCAA) championship. As
a professional, Martin qualified for the NIKE
TOUR in 1998 and 1999, and based on his 1999
performance, qualified for the PGA TOUR in
2000. In the 1999 season, he entered 24 events,
made the cut 13 times, and had 6 top-10 finishes,
coming in second twice and third once.
Martin is also an individual with a
disability as defined in the Americans with
Disabilities Act of 1990 (ADA or Act).[7] Since
birth he has been afflicted with KlippelTrenaunay-Weber Syndrome, a degenerative
circulatory disorder that obstructs the flow of
blood from his right leg back to his heart. The
disease is progressive; it causes severe pain and
has atrophied his right leg. During the latter part
of his college career, because of the progress of
the disease, Martin could no longer walk an 18hole golf course.[8] Walking not only caused
him pain, fatigue, and anxiety, but also created a
significant risk of hemorrhaging, developing
blood clots, and fracturing his tibia so badly that
an amputation might be required. For these
reasons, Stanford made written requests to the
Pacific 10 Conference and the NCAA to waive
for Martin their rules requiring players to walk
and carry their own clubs. The requests were
granted.[9]
Page 669
When Martin turned pro and entered
petitioner's Q-School, the hard card permitted
him to use a cart during his successful progress
through the first two stages. He made a request,
supported by detailed medical records, for
permission to use a golf cart during the third
stage. Petitioner refused to review those records
or to waive its walking rule for the third stage.
Martin therefore filed this action. A preliminary
injunction entered by the District Court made it
possible for him to use a cart in the final stage of
the Q-School and as a competitor in the NIKE
TOUR and PGA TOUR. Although not bound by
the injunction, and despite its support for
petitioner's position in this litigation, the USGA
voluntarily granted Martin a similar waiver in
events that it sponsors, including the U.S. Open.
III
..

333

At trial, petitioner did not contest the

conclusion that Martin has a disability covered
by the ADA, or the fact "that his disability
prevents him from walking the course during a
round of golf." 994 F.Supp. 1242, 1244 (Ore.
1998). Rather, petitioner asserted that the
condition of walking is a substantive rule of
competition, and that waiving it as to any
individual for any reason would fundamentally
alter the nature of the competition. Petitioner's
evidence included the testimony of a number of
experts, among them some of the greatest
golfers in history. Arnold Palmer,[13] Jack
Nicklaus,[14] and Ken Venturi[15] explained
that fatigue can be
Page 671
a critical factor in a tournament, particularly on
the last day when psychological pressure is at a
maximum. Their testimony makes it clear that,
in their view, permission to use a cart might well
give some players a competitive advantage over
other players who must walk. They did not,
however, express any opinion on whether a cart
would give Martin such an advantage.[16]
Rejecting petitioner's argument that an
individualized inquiry into the necessity of the
walking rule in Martin's case would be
inappropriate, the District Court stated that it
had "the independent duty to inquire into the
purpose of the rule at issue, and to ascertain
whether there can be a reasonable modification
made to accommodate plaintiff without
frustrating the purpose of the rule" and thereby
fundamentally altering the nature of petitioner's
tournaments. Id., at 1246. The judge found that
the purpose of the rule was to inject fatigue into
the skill of shotmaking, but that the fatigue
injected "by walking the course cannot be
deemed
significant
under
normal
circumstances." Id., at 1250. Furthermore,
Martin presented evidence, and the judge found,
that even with the use of a cart, Martin must
walk over a mile during
Page 672
an 18-hole round,[17] and that the fatigue he
suffers from coping with his disability is
"undeniably greater" than the fatigue his ablebodied competitors endure from walking the
course. Id., at 1251. As the judge observed:
"[P]laintiff is in significant pain when he
walks, and even when he is getting in and out of

the cart. With each step, he is at risk of

fracturing his tibia and hemorrhaging. The other
golfers have to endure the psychological stress
of competition as part of their fatigue; Martin
has the same stress plus the added stress of pain
and risk of serious injury. As he put it, he would
gladly trade the cart for a good leg. To perceive
that the cart puts himwith his conditionat a
competitive advantage is a gross distortion of
reality." Id., at 1251-1252.
As a result, the judge concluded that it would
"not fundamentally alter the nature of the PGA
Tour's game to accommodate him with a cart."
Id., at 1252. The judge accordingly entered a
permanent injunction requiring petitioner to
permit Martin to use a cart in tour and qualifying
events.
[The case was then appealed to the Ninth
Circuit Court of Appeals]
On the merits, because there was no serious
dispute about the fact that permitting Martin to
use a golf cart was both a reasonable and a
necessary solution to the problem of providing
him access to the tournaments, the Court of
Appeals regarded the central dispute as whether
such permission would "fundamentally alter" the
nature of the PGA TOUR or NIKE TOUR. Like
the District Court, the Court of Appeals viewed
the issue not as "whether use of carts generally
would fundamentally alter the competition, but
whether the use of a cart by Martin would do
so." Id., at 1001. That issue turned on "an
intensively fact-based inquiry," and, the court
concluded, had been correctly resolved by the
trial judge. In its words, "[a]ll that the cart does
is permit Martin access to a type of competition
in which he otherwise could not engage because
of his disability." Id., at 1000.
Page 674
The day after the Ninth Circuit ruled in
Martin's favor, the Seventh Circuit came to a
contrary conclusion in a case brought against the
USGA by a disabled golfer who failed to qualify
for "America's greatestand most democratic
golf tournament, the United States Open."
Olinger v. United States Golf Assn., 205 F.3d
1001 (2000).[19] The Seventh Circuit endorsed
the conclusion of the District Court in that case
that "the nature of the competition would be
fundamentally altered if the walking rule were
eliminated because it would remove stamina (at

334

least a particular type of stamina) from the set of

qualities designed to be tested in this
competition." Id., at 1006 (internal quotation
marks omitted). In the Seventh Circuit's opinion,
the physical ordeals endured by Ken Venturi and
Ben Hogan when they walked to their Open
victories in 1964 and 1950 amply demonstrated
the importance of stamina in such a
tournament.[20] As an alternative basis for its
holding, the court also concluded that the ADA
does not require the USGA to bear "the
administrative burdens of evaluating requests to
waive the walking rule and permit the use of a
golf cart." Id., at 1007.
.
IV
Congress enacted the ADA in 1990 to
remedy widespread discrimination against
disabled individuals. In studying the need for
such legislation, Congress found that
"historically, society has tended to isolate and
segregate individuals with
Page 675
disabilities, and, despite some improvements,
such forms of discrimination against individuals
with disabilities continue to be a serious and
pervasive social problem." 42 U.S.C.
12101(a)(2);
see

12101(a)(3)
("[D]iscrimination against individuals with
disabilities persists in such critical areas as
employment, housing, public accommodations,
education,
transportation,
communication,
recreation, institutionalization, health services,
voting, and access to public services"). Congress
noted that the many forms such discrimination
takes include "outright intentional exclusion" as
well as the "failure to make modifications to
existing facilities and practices." 12101(a)(5).
After thoroughly investigating the problem,
Congress concluded that there was a
"compelling need" for a "clear and
comprehensive national mandate" to eliminate
discrimination against disabled individuals, and
to integrate them "into the economic and social
mainstream of American life." S. Rep. No. 101116, p. 20 (1989); H. R. Rep. No. 101-485, pt. 2,
p. 50 (1990).
In the ADA, Congress provided that broad
mandate. See 42 U.S.C. 12101(b). In fact, one
of the Act's "most impressive strengths" has
been identified as its "comprehensive character,"

Hearings on S. 933 before the Senate Committee

on Labor and Human Resources and the
Subcommittee on the Handicapped, 101st Cong.,
1st Sess., 197 (1989) (statement of Attorney
General Thornburgh), and accordingly the Act
has been described as "a milestone on the path to
a more decent, tolerant, progressive society,"
Board of Trustees of Univ. of Ala. v. Garrett,
531 U.S. 356, 375 (2001) (Kennedy, J.,
concurring). To effectuate its sweeping purpose,
the ADA forbids discrimination against disabled
individuals in major areas of public life, among
them employment (Title I of the Act),[21] public
services
(Title
II),[22]
and
public
accommodations (Title III).[23] At issue now, as
a threshold matter, is
Page 676
the applicability of Title III to petitioner's golf
tours and qualifying rounds, in particular to
petitioner's treatment of a qualified disabled
golfer wishing to compete in those events.
[The Court concludes that golf tours are places
of public accommodation covered by the ADA]

V
As we have noted, 42 U.S.C. 12182(a)
sets forth Title III's general rule prohibiting
public accommodations from
Page 682
discriminating against individuals because of
their disabilities. The question whether
petitioner has violated that rule depends on a
proper construction of the term "discrimination,"
which is defined by Title III to include
"a failure to make reasonable modifications
in policies, practices, or procedures, when such
modifications are necessary to afford such
goods,
services,
facilities,
privileges,
advantages, or accommodations to individuals
with disabilities, unless the entity can
demonstrate that making such modifications
would fundamentally alter the nature of such
goods,
services,
facilities,
privileges,
advantages,
or
accommodations."

12182(b)(2)(A)(ii) (emphasis added).

Petitioner does not contest that a golf cart is a
reasonable modification that is necessary if
Martin is to play in its tournaments. Martin's
claim thus differs from one that might be
asserted by players with less serious afflictions
that make walking the course uncomfortable or

335

difficult, but not beyond their capacity. In such

cases, an accommodation might be reasonable
but not necessary. In this case, however, the
narrow dispute is whether allowing Martin to
use a golf cart, despite the walking requirement
that applies to the PGA TOUR, the NIKE
TOUR, and the third stage of the Q-School, is a
modification that would "fundamentally alter the
nature" of those events.
In theory, a modification of petitioner's golf
tournaments might constitute a fundamental
alteration in two different ways. It might alter
such an essential aspect of the game of golf that
it would be unacceptable even if it affected all
competitors equally; changing the diameter of
the hole from three to six inches might be such a
modification.[36]
Alternatively,
a
less
significant change that has only a peripheral
Page 683
impact on the game itself might nevertheless
give a disabled player, in addition to access to
the competition as required by Title III, an
advantage over others and, for that reason,
fundamentally alter the character of the
competition.[37] We are not persuaded that a
waiver of the walking rule for Martin would
work a fundamental alteration in either
sense.[38]
As an initial matter, we observe that the use
of carts is not itself inconsistent with the
fundamental character of the game of golf. From
early on, the essence of the game has been
shotmakingusing clubs to cause a ball to
progress from the teeing ground to a hole some
distance away with as few strokes as
possible.[39] That essential aspect of the game
Page 684
is still reflected in the very first of the Rules of
Golf, which declares: "The Game of Golf
consists in playing a ball from the teeing ground
into the hole by a stroke or successive strokes in
accordance with the rules." Rule 1-1, Rules of
Golf, App. 104 (emphasis in original). Over the
years, there have been many changes in the
players' equipment, in golf course design, in the
Rules of Golf, and in the method of transporting
clubs from hole to hole.[40] Originally, so few
clubs were used that each player could carry
them without
Page 685

a bag. Then came golf bags, caddies, carts that

were pulled by hand, and eventually motorized
carts that carried players as well as clubs. "Golf
carts started appearing with increasing regularity
on American golf courses in the 1950's. Today
they are everywhere. And they are encouraged.
For one thing, they often speed up play, and for
another, they are great revenue producers."[41]
There is nothing in the Rules of Golf that either
forbids the use of carts or penalizes a player for
using a cart. That set of rules, as we have
observed, is widely accepted in both the amateur
and professional golf world as the rules of the
game.[42] The walking rule that is contained in
petitioner's hard cards, based on an optional
condition buried in an appendix to the Rules of
Golf,[43] is not an essential attribute of the game
itself.
Indeed, the walking rule is not an
indispensable feature of tournament golf either.
As already mentioned, petitioner permits golf
carts to be used in the SENIOR PGA TOUR, the
open qualifying events for petitioner's
tournaments, the first two stages of the QSchool, and, until 1997, the third stage of the QSchool as well. See supra, at 665-667.
Moreover, petitioner allows the use of carts
during certain tournament rounds in both the
PGA TOUR and the NIKE
Page 686
TOUR. See supra, at 667, and n. 6. In addition,
although the USGA enforces a walking rule in
most of the tournaments that it sponsors, it
permits carts in the Senior Amateur and the
Senior Women's Amateur championships.[44]
Petitioner, however, distinguishes the game
of golf as it is generally played from the game
that it sponsors in the PGA TOUR, NIKE
TOUR, and (at least recently) the last stage of
the Q-Schoolgolf at the "highest level."
According to petitioner, "[t]he goal of the
highest-level competitive athletics is to assess
and compare the performance of different
competitors, a task that is meaningful only if the
competitors are subject to identical substantive
rules."[45] The waiver of any possibly
"outcome-affecting" rule for a contestant would
violate this principle and therefore, in
petitioner's view, fundamentally alter the nature
of the highest level athletic event.[46] The
walking rule is one such rule, petitioner submits,

336

because its purpose is "to inject the element of

fatigue into the skill of shot-making,"[47] and
thus its effect may be the critical loss of a stroke.
As a consequence, the reasonable modification
Martin seeks would fundamentally alter the
nature of petitioner's highest level tournaments
even if he were the only person in the world who
has both the talent to compete in those elite
events and a disability sufficiently serious that
he cannot do so without using a cart.
The force of petitioner's argument is, first
of all, mitigated by the fact that golf is a game in
which it is impossible to guarantee that all
competitors will play under exactly the
Page 687
same conditions or that an individual's ability
will be the sole determinant of the outcome. For
example, changes in the weather may produce
harder greens and more head winds for the
tournament leader than for his closest pursuers.
A lucky bounce may save a shot or two.[48]
Whether such happenstance events are more or
less probable than the likelihood that a golfer
afflicted
with
Klippel-Trenaunay-Weber
Syndrome would one day qualify for the NIKE
TOUR and PGA TOUR, they at least
demonstrate that pure chance may have a greater
impact on the outcome of elite golf tournaments
than the fatigue resulting from the enforcement
of the walking rule.
Further, the factual basis of petitioner's
argument is undermined by the District Court's
finding that the fatigue from walking during one
of petitioner's 4-day tournaments cannot be
deemed significant. The District Court credited
the testimony of a professor in physiology and
expert on fatigue, who calculated the calories
expended in walking a golf course (about five
miles) to be approximately 500 calories "
'nutritionally . . . less than a Big Mac.' " 994 F.
Supp., at 1250. What is more, that energy is
expended over a 5-hour period, during which
golfers have numerous intervals for rest and
refreshment. In fact, the expert concluded,
because golf is a low intensity activity, fatigue
from the game is primarily a psychological
phenomenon in which stress and motivation are
the key ingredients. And even under conditions
of severe heat and humidity, the critical factor in
fatigue is fluid loss rather than exercise from
walking.

Moreover, when given the option of using a

cart, the majority of golfers in petitioner's
tournaments have chosen to
Page 688
walk, often to relieve stress or for other strategic
reasons.[49] As NIKE TOUR member Eric
Johnson testified, walking allows him to keep in
rhythm, stay warmer when it is chilly, and
develop a better sense of the elements and the
course than riding a cart.[50]
Even if we accept the factual predicate for
petitioner's argumentthat the walking rule is
"outcome affecting" because fatigue may
adversely affect performanceits legal position
is fatally flawed. Petitioner's refusal to consider
Martin's personal circumstances in deciding
whether to accommodate his disability runs
counter to the clear language and purpose of the
ADA. As previously stated, the ADA was
enacted to eliminate discrimination against
"individuals" with disabilities, 42 U.S.C.
12101(b)(1), and to that end Title III of the Act
requires without exception that any "policies,
practices, or procedures" of a public
accommodation be reasonably modified for
disabled "individuals" as necessary to afford
access unless doing so would fundamentally
alter what is offered, 12182(b)(2)(A)(ii). To
comply with this command, an individualized
inquiry must be made to determine whether a
specific modification for a particular person's
disability would be reasonable under the
circumstances as well as necessary for that
person, and yet at the same time not work a
fundamental alteration. See S. Rep. No. 101116, at 61; H. R. Rep. No. 101-485, pt. 2, at 102
(public accommodations "are required to make
decisions based on facts applicable to
individuals"). Cf. Sutton v. United Air Lines,
Inc., 527 U.S. 471, 483 (1999) ("[W]hether a
person has a disability under the ADA is an
individualized inquiry").
Page 689
To be sure, the waiver of an essential rule
of competition for anyone would fundamentally
alter the nature of petitioner's tournaments. As
we have demonstrated, however, the walking
rule is at best peripheral to the nature of
petitioner's athletic events, and thus it might be
waived in individual cases without working a
fundamental alteration. Therefore, petitioner's

337

claim that all the substantive rules for its

"highest-level" competitions are sacrosanct and
cannot be modified under any circumstances is
effectively a contention that it is exempt from
Title III's reasonable modification requirement.
But that provision carves out no exemption for
elite athletics, and given Title III's coverage not
only of places of "exhibition or entertainment"
but also of "golf course[s]," 42 U.S.C.
12181(7)(C), (L), its application to petitioner's
tournaments cannot be said to be unintended or
unexpected, see 12101(a)(1), (5). Even if it
were, "the fact that a statute can be applied in
situations not expressly anticipated by Congress
does not demonstrate ambiguity. It demonstrates
breadth." Pennsylvania Dept. of Corrections v.
Yeskey, 524 U.S., at 212 (internal quotation
marks omitted).[51]
Page 690
Under the ADA's basic requirement that the
need of a disabled person be evaluated on an
individual basis, we have no doubt that allowing
Martin to use a golf cart would not
fundamentally alter the nature of petitioner's
tournaments. As we have discussed, the purpose
of the walking rule is to subject players to
fatigue, which in turn may influence the
outcome of tournaments. Even if the rule does
serve that purpose, it is an uncontested finding
of the District Court that Martin "easily endures
greater fatigue even with a cart than his ablebodied competitors do by walking." 994 F.
Supp., at 1252. The purpose of the walking rule
is therefore not compromised in the slightest by
allowing Martin to use a cart. A modification
that provides an exception to a peripheral
tournament rule without impairing its purpose
cannot be said to "fundamentally alter" the
tournament. What it can be said to do, on the
other hand, is to allow Martin the chance to
qualify for, and compete in, the athletic events
petitioner offers to those members of the public
who have the skill and desire to enter. That is
exactly what the ADA requires.[52] As a result,
Martin's request for a waiver of the walking rule
should have been granted.
The ADA admittedly imposes some
administrative burdens on the operators of
places of public accommodation that could be
avoided by strictly adhering to general rules and
policies that are entirely fair with respect to the

able-bodied but that may indiscriminately

preclude access by qualified persons with
disabilities.[53] But surely, in a case of this kind,
Page 691
Congress intended that an entity like the PGA
not only give individualized attention to the
handful of requests that it might receive from
talented but disabled athletes for a modification
or waiver of a rule to allow them access to the
competition, but also carefully weigh the
purpose, as well as the letter, of the rule before
determining that no accommodation would be
tolerable.
The judgment of the Court of Appeals is
affirmed.
It is so ordered.
Justice Scalia, with whom Justice Thomas
joins, dissenting.
In my view today's opinion exercises a
benevolent compassion that the law does not
place it within our power to impose. The
judgment distorts the text of Title III, the
structure of the ADA, and common sense. I
respectfully dissent.
I
[Justice Scalia first disagrees that the PGA
Tour is a place of public accommodation
covered by the ADA]
Page 698
II
Having erroneously held that Title III
applies to the "customers" of professional golf
who consist of its practitioners, the Court then
erroneously answersor to be accurate simply
ignoresa second question. The ADA requires
covered businesses to make such reasonable
modifications of "policies, practices, or
procedures" as are necessary to "afford" goods,
services, and privileges to individuals with
disabilities; but it explicitly does not require
"modifications [that] would fundamentally alter
the nature" of the goods, services, and
privileges. 12182(b)(2)(A)(ii). In other words,
disabled individuals must be given access to
the same goods, services, and privileges that
others enjoy. The regulations state that Title III
"does not require a public accommodation to
alter its inventory to include accessible or
special goods with accessibility features that are
designed for, or facilitate use by, individuals
with disabilities." 28 CFR 36.307(2000); see

338

also 28 CFR, ch. 1, pt. 36, App. B, at 650. As

one Court of Appeals has explained:
"The common sense of the statute is that
the content of the goods or services offered by a
place of public accommodation is not regulated.
A camera store may not refuse to sell cameras to
a disabled person, but it is not required to stock
cameras specially designed for such persons.
Had Congress purposed to impose so enormous
a burden on the retail sector of the economy and
so vast a supervisory responsibility on the
federal courts, we think it would have made its
intention clearer and would at least have
imposed some standards. It is hardly a feasible
judicial function to decide whether shoestores
should sell single shoes to one-legged persons
and if so at what price, or how many Braille
books the Borders or Barnes and Noble
bookstore chains should stock in each of their
stores." Doe v. Mutual of Omaha Ins. Co., 179
F.3d 557, 560 (CA7 1999).
Page 699
Since this is so, even if respondent here is a
consumer of the "privilege" of the PGA TOUR
competition, see ante, at 677, I see no basis for
considering whether the rules of that
competition must be altered. It is as irrelevant to
the PGA TOUR's compliance with the statute
whether walking is essential to the game of golf
as it is to the shoe store's compliance whether
"pairness" is essential to the nature of shoes. If a
shoe store wishes to sell shoes only in pairs it
may; and if a golf tour (or a golf course) wishes
to provide only walk-around golf, it may. The
PGA TOUR cannot deny respondent access to
that game because of his disability, but it need
not provide him a game different (whether in its
essentials or in its details) from that offered to
everyone else.
Since it has held (or assumed) professional
golfers to be customers "enjoying" the
"privilege" that consists of PGA TOUR golf;
and since it inexplicably regards the rules of
PGA TOUR golf as merely "policies, practices,
or procedures" by which access to PGA TOUR
golf is provided, the Court must then confront
the question whether respondent's requested
modification of the supposed policy, practice, or
procedure of walking would "fundamentally
alter the nature" of the PGA TOUR game,
12182(b)(2)(A)(ii). The Court attacks this

"fundamental alteration" analysis by asking two

questions: first, whether the "essence" or an
"essential aspect" of the sport of golf has been
altered; and second, whether the change, even if
not essential to the game, would give the
disabled player an advantage over others and
thereby "fundamentally alter the character of the
competition." Ante, at 683. It answers no to
both.
Before considering the Court's answer to
the first question, it is worth pointing out that the
assumption which underlies that question is
false. Nowhere is it writ that PGA TOUR golf
must be classic "essential" golf. Why cannot the
PGA TOUR, if it wishes, promote a new game,
with distinctive rules (much as the American
League promotes a game of baseball in which
the pitcher's turn at the plate can be
Page 700
taken by a "designated hitter")? If members of
the public do not like the new rulesif they feel
that these rules do not truly test the individual's
skill at "real golf" (or the team's skill at "real
baseball") they can withdraw their patronage.
But the rules are the rules. They are (as in all
games) entirely arbitrary, and there is no basis
on which anyonenot even the Supreme Court
of the United Statescan pronounce one or
another of them to be "nonessential" if the
rulemaker (here the PGA TOUR) deems it to be
essential.
If one assumes, however, that the PGA
TOUR has some legal obligation to play classic,
Platonic golfand if one assumes the
correctness of all the other wrong turns the
Court has made to get to this pointthen we
Justices must confront what is indeed an
awesome responsibility. It has been rendered the
solemn duty of the Supreme Court of the United
States, laid upon it by Congress in pursuance of
the Federal Government's power "[t]o regulate
Commerce with foreign Nations, and among the
several States," U.S. Const., Art. I, 8, cl. 3, to
decide What Is Golf. I am sure that the Framers
of the Constitution, aware of the 1457 edict of
King James II of Scotland prohibiting golf
because it interfered with the practice of archery,
fully expected that sooner or later the paths of
golf and government, the law and the links,
would once again cross, and that the judges of
this august Court would some day have to

339

wrestle with that age-old jurisprudential

question, for which their years of study in the
law have so well prepared them: Is someone
riding around a golf course from shot to shot
really a golfer? The answer, we learn, is yes.
The Court ultimately concludes, and it will
henceforth be the Law of the Land, that walking
is not a "fundamental" aspect of golf.
Either out of humility or out of self-respect
(one or the other) the Court should decline to
answer this incredibly difficult and incredibly
silly question. To say that something is
"essential" is ordinarily to say that it is necessary
to the achievement of a certain object. But since
it is the very
Page 701
nature of a game to have no object except
amusement (that is what distinguishes games
from productive activity), it is quite impossible
to say that any of a game's arbitrary rules is
"essential." Eighteen-hole golf courses, 10-foothigh basketball hoops, 90-foot baselines, 100yard football fieldsall are arbitrary and none is
essential. The only support for any of them is
tradition and (in more modern times) insistence
by what has come to be regarded as the ruling
body of the sportboth of which factors support
the PGA TOUR's position in the present case.
(Many, indeed, consider walking to be the
central feature of the game of golfhence Mark
Twain's classic criticism of the sport: "a good
walk spoiled.") I suppose there is some point at
which the rules of a well-known game are
changed to such a degree that no reasonable
person would call it the same game. If the PGA
TOUR competitors were required to dribble a
large, inflated ball and put it through a round
hoop, the game could no longer reasonably be
called golf. But this criteriondestroying
recognizability as the same generic gameis
surely not the test of "essentialness" or
"fundamentalness" that the Court applies, since
it apparently thinks that merely changing the
diameter of the cup might "fundamentally alter"
the game of golf, ante, at 682.
Having concluded that dispensing with the
walking rule would not violate federal-Platonic
"golf" (and, implicitly, that it is federal-Platonic
golf, and no other, that the PGA TOUR can
insist upon), the Court moves on to the second
part of its test: the competitive effects of

waiving this nonessential rule. In this part of its

analysis, the Court first finds that the effects of
the change are "mitigated" by the fact that in the
game of golf weather, a "lucky bounce," and
"pure chance" provide different conditions for
each competitor and individual ability may not
"be the sole determinant of the outcome." Ante,
at 687. I guess that is why those who follow
professional golfing consider Jack Nicklaus the
luckiest golfer of all time, only to be challenged
of late by
Page 702
the phenomenal luck of Tiger Woods. The
Court's empiricism is unpersuasive. "Pure
chance" is randomly distributed among the
players, but allowing respondent to use a cart
gives him a "lucky" break every time he plays.
Pure chance also only matters at the margina
stroke here or there; the cart substantially
improves this respondent's competitive prospects
beyond a couple of strokes. But even granting
that there are significant nonhuman variables
affecting competition, that fact does not justify
adding another variable that always favors one
player.
In an apparent effort to make its opinion as
narrow as possible, the Court relies upon the
District Court's finding that even with a cart,
respondent will be at least as fatigued as
everyone else. Ante, at 690. This, the Court says,
proves that competition will not be affected. Far
from thinking that reliance on this finding cabins
the effect of today's opinion, I think it will prove
to be its most expansive and destructive feature.
Because step one of the Court's two-part inquiry
into whether a requested change in a sport will
"fundamentally
alter
[its]
nature,"

12182(b)(2)(A)(ii), consists of an utterly

unprincipled ontology of sports (pursuant to
which the Court is not even sure whether golf's
"essence" requires a 3-inch hole), there is every
reason to think that in future cases involving
requests for special treatment by would-be
athletes the second step of the analysis will be
determinative. In resolving that second step
determining
whether
waiver
of
the
"nonessential" rule will have an impermissible
"competitive effect"by measuring the athletic
capacity of the requesting individual, and asking
whether the special dispensation would do no
more than place him on a par (so to speak) with

340

other competitors, the Court guarantees that

future cases of this sort will have to be decided
on the basis of individualized factual findings.
Which means that future cases of this sort will
be numerous, and a rich source of lucrative
litigation. One can envision the parents of a
Little
Page 703
League player with attention deficit disorder
trying to convince a judge that their son's
disability makes it at least 25% more difficult to
hit a pitched ball. (If they are successful, the
only thing that could prevent a court order
giving the kid four strikes would be a judicial
determination that, in baseball, three strikes are
metaphysically necessary, which is quite
absurd.)
The statute, of course, provides no basis for
this individualized analysis that is the Court's
last step on a long and misguided journey. The
statute seeks to assure that a disabled person's
disability will not deny him equal access to
(among other things) competitive sporting
eventsnot that his disability will not deny him
an equal chance to win competitive sporting
events. The latter is quite impossible, since the
very nature of competitive sport is the
measurement, by uniform rules, of unevenly
distributed excellence. This unequal distribution
is precisely what determines the winners and
losersand artificially to "even out" that
distribution, by giving one or another player
exemption from a rule that emphasizes his
particular weakness, is to destroy the game. That
is why the "handicaps" that are customary in
social games of golfwhich, by adding strokes
to the scores of the good players and subtracting
them from scores of the bad ones, "even out" the
varying abilitiesare not used in professional
golf. In the Court's world, there is one set of
rules that is "fair with respect to the ablebodied" but "individualized" rules, mandated by
the ADA, for "talented but disabled athletes."
Ante, at 691. The ADA mandates no such
ridiculous thing. Agility, strength, speed,
balance, quickness of mind, steadiness of nerves,
intensity of concentrationthese talents are not
evenly distributed. No wild-eyed dreamer has
ever suggested that the managing bodies of the
competitive sports that test precisely these

qualities should try to take account of the

uneven distribution of God-given
Page 704
gifts when writing and enforcing the rules of
competition. And I have no doubt Congress did
not authorize misty-eyed judicial supervision of
such a revolution.
***
My belief that today's judgment is clearly
in error should not be mistaken for a belief that
the PGA TOUR clearly ought not allow
respondent to use a golf cart. That is a close
question, on which even those who compete in
the PGA TOUR are apparently divided; but it is
a different question from the one before the
Court. Just as it is a different question whether
the Little League ought to give disabled
youngsters a fourth strike, or some other waiver
from the rules that makes up for their
disabilities. In both cases, whether they ought to
do so depends upon (1) how central to the game
that they have organized (and over whose rules
they are the master) they deem the waived
provision to be, and (2) how competitivehow
strict a test of raw athletic ability in all aspects
of the competitionthey want their game to be.
But whether Congress has said they must do so
depends upon the answers to the legal questions
I have discussed abovenot upon what this
Court sententiously decrees to be " 'decent,
tolerant, [and] progressive,' " ante, at 675
(quoting Board of Trustees of Univ. of Ala. v.
Garrett, 531 U.S. 356, 375 (2001) (Kennedy, J.,
concurring)).
And it should not be assumed that today's
decent, tolerant, and progressive judgment will,
in the long run, accrue to the benefit of sports
competitors with disabilities. Now that it is clear
courts will review the rules of sports for
"fundamentalness," organizations that value
their autonomy have every incentive to defend
vigorously the necessity of every regulation.
They may still be second-guessed in the end as
to the Platonic requirements of the sport, but
they will assuredly lose if they have at all
wavered in their enforcement. The lesson the
PGA TOUR and other sports organizations
should take from this case is to make sure that
the same written
Page 705

341

rules are set forth for all levels of play, and

never voluntarily to grant any modifications.
The second lesson is to end open tryouts. I doubt
that, in the long run, even disabled athletes will
be well served by these incentives that the Court
has created.
Complaints about this case are not
"properly directed to Congress," ante, at 689, n.
51. They are properly directed to this Court's
Kafkaesque determination that professional
sports organizations, and the fields they rent for
their exhibitions, are "places of public
accommodation" to the competing athletes, and
the athletes themselves "customers" of the
organization that pays them; its Alice in
Wonderland determination that there are such
things as judicially determinable "essential" and
"nonessential" rules of a made-up game; and its
Animal Farm determination that fairness and the
ADA mean that everyone gets to play by
individualized rules which will assure that no
one's lack of ability (or at least no one's lack of
ability so pronounced that it amounts to a
disability) will be a handicap. The year was
2001, and "everybody was finally equal." K.
Vonnegut, Harrison Bergeron, in Animal Farm
and Related Readings 129 (1997).0
--------------Notes:
[*] Briefs of amici curiae urging reversal were
filed for the Equal Employment Advisory
Council by Ann Elizabeth Reesman; for ATP
Tour, Inc., et al. by Bradley I. Ruskin; for the
United States Golf Association by Roy T.
Englert, Jr., Lee N. Abrams, James C.
Schroeder, Robert M. Dow, Jr., and John W.
Vardaman; and for Kenneth R. Green II by
Gregory D. Smith.
Briefs of amici curiae urging affirmance were
filed for the American Association of Adapted
Sports Programs et al. by Anita M. Moorman
and Lisa Pike Masteralexis; for the K-T Support
Group by Brian D. Shannon; for the National
Association of Protection and Advocacy
Systems et al. by Sharon Masling, Samuel R.
Bagenstos, and Neil V. McKittrick; and for
Robert J. Dole et al. by Robert L. Burgdorf, Jr.,
and George G. Olsen.
[1] After the trial of the case, the name of the
NIKE TOUR was changed to the Buy.com
TOUR.

[2] Generally, to maintain membership in a tour

for the succeeding year, rather than go through
the Q-School again, a player must perform at a
certain level.
[3] Instead, Appendix I to the Rules of Golf lists
a number of "optional" conditions, among them
one related to transportation: "If it is desired to
require players to walk in a competition, the
following condition is suggested:
"Players shall walk at all times during a
stipulated round." App. 125.
[4] The PGA TOUR hard card provides:
"Players shall walk at all times during a
stipulated round unless permitted to ride by the
PGA TOUR Rules Committee." Id., at 127. The
NIKE TOUR hard card similarly requires
walking unless otherwise permitted. Id., at 129.
Additionally, as noted, golf carts have not been
permitted during the third stage of the Q-School
since 1997. Petitioner added this recent
prohibition in order to "approximat[e] a PGA
TOUR event as closely as possible." Id., at 152.
[5] 994 F.Supp. 1242, 1251 (Ore. 1998).
[6] See, e. g., App. 156-160 (Notices to
Competitors for 1997 Bob Hope Chrysler
Classic, 1997 AT&T Pebble Beach National
Pro-Am, and 1997 Quad City Classic).
[7] Title 42 U.S.C. 12102 provides, in part:
"The term 'disability' means, with respect to an
individual
"(A) a physical or mental impairment that
substantially limits one or more of the major life
activities of such individual . . . ."
[8] Before then, even when Martin was in
extreme pain, and was offered a cart, he
declined. Tr. 564-565.
[9] When asked about the other teams' reaction
to Martin's use of a cart, the Stanford coach
testified:
"Q. Was there any complaint ever made to you
by the coaches when he was allowed a cart that
that gave a competitive advantage over the
"A. Any complaints? No sir, there were
exactlyexactly the opposite. Everybody
recognized Casey for the person he was, and
what he was doing with his life, and every
coach, to my knowledge, and every player
wanted Casey in the tournament and they
welcomed him there.
"Q. Did anyone contend that that constituted an
alteration of the competition to the extent that it

342

didn't constitute the game to your level, the

college level?
"A. Not at all, sir." App. 208.
.
[13] "Q. And fatigue is one of the factors that
can cause a golfer at the PGA Tour level to lose
one stroke or more?
"A. Oh, it is. And it has happened.
"Q. And can one stroke be the difference
between winning and not winning a tournament
at the PGA Tour level?
"A. As I said, I've lost a few national opens by
one stroke." App. 177.
[14] "Q. Mr. Nicklaus, what is your
understanding of the reason why in these
competitive events . . . that competitors are
required to walk the course?
"A. Well, in my opinion, physical fitness and
fatigue are part of the game of golf." Id., at 190.
[15] "Q. So are you telling the court that this
fatigue factor tends to accumulate over the
course of the four days of the tournament?
"A. Oh definitely. There's no doubt.
.....
"Q. Does this fatigue factor that you've talked
about, Mr. Venturi, affect the manner in which
youyou perform as a professional out on the
golf course?
"A. Oh, there's no doubt, again, but that, that
fatigue does play a big part. It will influence
your game. It will influence your shot-making. It
will influence your decisions." Id., at 236-237.
[16] "Q. Based on your experience, do you
believe that it would fundamentally alter the
nature of the competition on the PGA Tour and
the Nike Tour if competitors in those events
were permitted to use golf carts?
"A. Yes, absolutely.
"Q. Why do you say so, sir? "
A. It wouldit would take away the fatigue
factor in many ways. It wouldit would change
the game.
.....
"Q. Now, when you say that the use of carts
takes away the fatigue factor, it would be an aid,
et cetera, again, as I understand it, you are not
testifying now about the plaintiff. You are just
talking in general terms?
.....
"A. Yes, sir." Id., at 238. See also id., at 177-178
(Palmer); id., at 191 (Nicklaus).

[17] "In the first place, he does walk while on

the courseeven with a cart, he must move
from cart to shot and back to the cart. In essence,
he still must walk approximately 25% of the
course. On a course roughly five miles in length,
Martin will walk 1 1/4 miles." 994 F. Supp., at
1251.
[18] It explained: "For example, Title III
includes
in
its
definition
'secondary,
undergraduate,
or
post-graduate
private
school[s].' 42 U.S.C. 12181(7)(J). The
competition to enter the most elite private
universities is intense, and a relatively select few
are admitted. That fact clearly does not remove
the universities from the statute's definition as
places of public accommodation." 204 F.3d, at
998.
[19] The golfer in the Seventh Circuit case, Ford
Olinger, suffers from bilateral avascular
necrosis, a degenerative condition that
significantly hinders his ability to walk.
[20] For a description of the conditions under
which they played, see Olinger v. United States
Golf Assn., 205 F.3d, at 1006-1007.
[21] 42 U.S.C. 12111-12117.
[22] 12131-12165.
[23] 12181-12189.
[24] "(A) an inn, hotel, motel, or other place of
lodging, except for an establishment located
within a building that contains not more than
five rooms for rent or hire and that is actually
occupied by the proprietor of such establishment
as the residence of such proprietor;
"(B) a restaurant, bar, or other establishment
serving food or drink;
"(C) a motion picture house, theater, concert
hall, stadium, or other place of exhibition or
entertainment;
"(D) an auditorium, convention center, lecture
hall, or other place of public gathering;
"(E) a bakery, grocery store, clothing store,
hardware store, shopping center, or other sales
or rental establishment;
"(F) a laundromat, dry-cleaner, bank, barber
shop, beauty shop, travel service, shoe repair
service, funeral parlor, gas station, office of an
accountant or lawyer, pharmacy, insurance
office, professional office of a health care
provider,
hospital,
or
other
service
establishment;

343

"(G) a terminal, depot, or other station used for

specified public transportation;
"(H) a museum, library, gallery, or other place
of display or collection;
"(I) a park, zoo, amusement park, or other place
of recreation;
"(J) a nursery, elementary, secondary,
undergraduate, or postgraduate private school, or
other place of education;
"(K) a day care center, senior citizen center,
homeless shelter, food bank, adoption agency, or
other social service center establishment; and
"(L) a gymnasium, health spa, bowling alley,
golf course, or other place of exercise or
recreation." 12181(7) (emphasis added).
[25] S. Rep. No. 101-116, p. 59 (1989); H. R.
Rep. No. 101-485, pt. 2, p. 100
[26] Reply Brief for Petitioner 1-2.
[27] Martin complains that petitioner's failure to
make this exact argument below precludes its
assertion here. However, the Title III coverage
issue was raised in the lower courts, petitioner
advanced this particular argument in support of
its position on the issue in its petition for
certiorari, and the argument was fully briefed on
the merits by both parties. Given the importance
of the issue, we exercise our discretion to
consider it. See Harris Trust and Sav. Bank v.
Salomon Smith Barney Inc., 530 U.S. 238, 245246, n. 2 (2000); Carlson v. Green, 446 U.S.
14, 17, n. 2 (1980).
[28] Brief for Petitioner 10, 11.
[29]
Id.,
at 19 (quoting 42 U.S.C.
12182(b)(1)(A)(iv)).
[ 30] Brief for Petitioner 15; see also id., at 16
(Martin's claim "is nothing more than a
straightforward discrimination-in-the-workplace
complaint").
[31] Clause (i) prohibits the denial of
participation, clause (ii) participation in unequal
benefits, and clause (iii) the provision of
separate benefits.
[32] Brief for Petitioner 20 (clause (iv) "applies
directly just to subsection 12182(b)"); Reply
Brief for Petitioner 4, n. 1 (clause (iv) "does not
apply directly to the general provision
prohibiting discrimination").
[33] Contrary to the dissent's suggestion, our
view of the Q-School does not make "everyone
who seeks a job" at a public accommodation,
through "an open tryout" or otherwise, "a

customer." Post, at 697 (opinion of Scalia, J.).

Unlike those who successfully apply for a job at
a place of public accommodation, or those who
successfully bid for a contract, the golfers who
qualify for petitioner's tours play at their own
pleasure (perhaps, but not necessarily, for prize
money), and although they commit to playing in
at least 15 tournaments, they are not bound by
any obligations typically associated with
employment. See,
e.g.,
App. 260 (trial
testimony of PGA commissioner Timothy
Finchem) (petitioner lacks control over when
and where tour members compete, and over their
manner of performance outside the rules of
competition). Furthermore, unlike athletes in
"other professional sports, such as baseball,"
post, at 697, in which players are employed by
their clubs, the golfers on tour are not employed
by petitioner or any related organizations. The
record does not support the proposition that the
purpose of the Q-School "is to hire," ibid.,
rather than to narrow the field of participants in
the sporting events that petitioner sponsors at
places of public accommodation.
[34] Title II of the Civil Rights Act of 1964
includes in its definition of "public
accommodation" a "place of exhibition or
entertainment" but does not specifically list a
"golf course" as an example. See 42 U.S.C.
2000a(b).
[35] Under petitioner's theory, Title II would not
preclude it from discriminating against golfers
on racial grounds. App. 197; Tr. of Oral Arg. 1112.
[36] Cf. post, at 701 (Scalia, J., dissenting) ("I
suppose there is some point at which the rules of
a well-known game are changed to such a
degree that no reasonable person would call it
the same game").
[37] Accord, post, at 703 (Scalia, J., dissenting)
("The statute seeks to assure that a disabled
person's disability will not deny him equal
access to (among other things) competitive
sporting eventsnot that his disability will not
deny him an equal chance to win competitive
sporting events").
[38] As we have noted, the statute contemplates
three inquiries: whether the requested
modification is "reasonable," whether it is
"necessary" for the disabled individual, and
whether it would "fundamentally alter the nature

344

of"
the
competition.
42
U.S.C.

12182(b)(2)(A)(ii). Whether one question should

be decided before the others likely will vary
from case to case, for in logic there seems to be
no necessary priority among the three. In routine
cases, the fundamental alteration inquiry may
end with the question whether a rule is essential.
Alternatively, the specifics of the claimed
disability might be examined within the context
of what is a reasonable or necessary
modification. Given the concession by petitioner
that the modification sought is reasonable and
necessary, and given petitioner's reliance on the
fundamental alteration provision, we have no
occasion to consider the alternatives in this case.
[39] Golf is an ancient game, tracing its ancestry
to Scotland, and played by such notables as
Mary Queen of Scots and her son James. That
shot-making has been the essence of golf since
early in its history is reflected in the first
recorded rules of golf, published in 1744 for a
tournament on the Leith Links in Edinburgh:
"Articles & Laws in Playing at Golf
"1. You must Tee your Ball, within a Club's
length of the [previous] Hole.
"2. Your Tee must be upon the Ground.
"3. You are not to change the Ball which you
Strike off the Tee.
"4. You are not to remove, Stones, Bones or any
Break Club for the sake of playing your Ball,
Except upon the fair Green/& that only/ within a
Club's length of your Ball.
"5. If your Ball comes among Water, or any
Watery Filth, you are at liberty to take out your
Ball & bringing it behind the hazard and Teeing
it, you may play it with any Club and allow your
Adversary a Stroke for so getting out your Ball.
"6. If your Balls be found anywhere touching
one another, You are to lift the first Ball, till you
play the last.
"7. At Holling, you are to play your Ball
honestly for the Hole, and, not to play upon your
Adversary's Ball, not lying in your way to the
Hole.
"8. If you should lose your Ball, by its being
taken up, or any other way, you are to go back to
the Spot, where you struck last & drop another
Ball, And allow your Adversary a Stroke for the
misfortune.

"9. No man at Holling his Ball, is to be allowed,

to mark his way to the Hole with his Club or,
any thing else.
"10. If a Ball be stopp'd by any person, Horse,
Dog, or any thing else, The Ball so stop'd must
be play'd where it lyes.
"11. If you draw your Club, in order to Strike &
proceed so far in the Stroke, as to be bringing
down your Club; If then, your Club shall break,
in, any way, it is to be Accounted a Stroke.
"12. He, whose Ball lyes farthest from the Hole
is obliged to play first.
"13. Neither Trench, Ditch, or Dyke, made for
the preservation of the Links, nor the Scholar's
Holes or the Soldier's Lines, Shall be accounted
a Hazard; But the Ball is to be taken
out/Teed/and play'd with any Iron Club." K.
Chapman, Rules of the Green 14-15 (1997).
[40] See generally M. Campbell, The Random
House International Encyclopedia of Golf 9-57
(1991); Golf Magazine's Encyclopedia of Golf
1-17 (2d ed. 1993).
[41] Olinger v. United States Golf Assn., 205
F.3d 1001, 1003 (CA7 2000).
[42] On this point, the testimony of the
immediate past president of the USGA (and one
of petitioner's witnesses at trial) is illuminating:
"Tell the court, if you would, Ms. Bell, who it is
that plays under these Rules of Golf . . . ?
"A. Well, these are the rules of the game, so all
golfers. These are for all people who play the
game.
"Q. So the two amateurs that go out on the
weekend to play golf together wouldwould
play by the Rules of Golf?
"A. We certainly hope so.
" Q. Or a tournament that is conducted at a
private country club for its members, is it your
understanding that that would typically be
conducted under the Rules of Golf?
"A. Well, that'sthat's right. If you want to play
golf, you need to play by these rules." App. 239.
[43] See n. 3, supra.
[44] Furthermore, the USGA's handicap system,
used by over 4 million amateur golfers playing
on courses rated by the USGA, does not
consider whether a player walks or rides in a
cart, or whether she uses a caddy or carries her
own clubs. Rather, a player's handicap is
determined by a formula that takes into account
the average score in the 10 best of her 20 most

345

recent rounds, the difficulty of the different

courses played, and whether or not a round was
a "tournament" event.
[45] Brief for Petitioner 13.
[46] Id., at 37.
[47] 994 F. Supp., at 1250.
[48] A drive by Andrew Magee earlier this year
produced a result that he neither intended nor
expected. While the foursome ahead of him was
still on the green, he teed off on a 322-yard par
four. To his surprise, the ball not only reached
the green, but also bounced off Tom Byrum's
putter and into the hole. Davis, Magee Gets Ace
on Par-4, Ariz. Republic, Jan. 26, 2001, p. C16,
2001 WL 8510792.
[49] That has been so not only in the SENIOR
PGA TOUR and the first two stages of the QSchool, but also, as Martin himself noticed, in
the third stage of the Q-School after petitioner
permitted everyone to ride rather than just
waiving the walking rule for Martin as required
by the District Court's injunction.
[50] App. 201. See also id., at 179-180
(deposition testimony of Gerry Norquist); id.,
at 225-226 (trial testimony of Harry Toscano).
[51] Hence, petitioner's questioning of the
ability of courts to apply the reasonable
modification requirement to athletic competition
is a complaint more properly directed to
Congress, which drafted the ADA's coverage
broadly, than to us. Even more misguided is
Justice Scalia's suggestion that Congress did not
place that inquiry into the hands of the courts at
all. According to the dissent, the game of golf as
sponsored by petitioner is, like all sports games,
the sum of its "arbitrary rules," and no one,
including courts, "can pronounce one or another
of them to be 'nonessential' if the rulemaker
(here the PGA TOUR) deems it to be essential."
Post, at 700. Whatever the merit of Justice
Scalia's postmodern view of "What Is [Sport],"
ibid., it is clear that Congress did not enshrine it
in Title III of the ADA. While Congress
expressly exempted "private clubs or
establishments" and "religious organizations or
entities" from Title III's coverage, 42 U.S.C.
12187, Congress made no such exception for
athletic competitions, much less did it give
sports organizations carte blanche authority to
exempt themselves from the fundamental
alteration inquiry by deeming any rule, no

matter how peripheral to the competition, to be

essential. In short, Justice Scalia's reading of the
statute renders the word "fundamentally" largely
superfluous, because it treats the alteration of
any rule governing an event at a public
accommodation to be a fundamental alteration.
[52] On this fundamental point, the dissent
agrees. See post, at 699 ("The PGA TOUR
cannot deny respondent access to that game
because of his disability").
[53] However, we think petitioner's contention
that the task of assessing requests for
modifications will amount to a substantial
burden is overstated. As Martin indicates, in the
three years since he requested the use of a cart,
no one else has sued the PGA, and only two
other golfers (one of whom is Olinger) have
sued the USGA for a waiver of the walking rule.
In addition, we believe petitioner's point is
misplaced, as nowhere in 12182(b)(2)(A)(ii)
does Congress limit the reasonable modification
requirement only to requests that are easy to
evaluate.
[1] The California Bar Exam is covered by the
ADA, by the way, because a separate provision
of Title III applies to "examinations . . . related
to applications, licensing, certification, or
credentialing for secondary or post-secondary
education, professional, or trade purposes." 42
U.S.C. 12189. If open tryouts were
"privileges" under 12182, and participants in
the tryouts "customers," 12189 would have
been unnecessary.
[2] The Court suggests that respondent is not an
independent contractor because he "play[s] at
[his] own pleasure," and is not subject to PGA
TOUR control "over [his] manner of
performance," ante, at 680, n. 33. But many
independent contractorscomposers of movie
music, portrait artists, script writers, and even
(some would say) plumbersretain at least as
much control over when and how they work as
does respondent, who agrees to play in a
minimum of 15 of the designated PGA TOUR
events, and to play by the rules that the PGA
TOUR specifies. Cf. Community for Creative
Non-Violence v. Reid, 490 U.S. 730, 751-753
(1989) (discussing independent contractor status
of a sculptor). Moreover, although, as the Court
suggests in the same footnote, in rare cases a
PGA TOUR winner will choose to forgo the

346

prize money (in order, for example, to preserve

amateur status necessary for continuing
participation in college play) he is contractually
---------------

entitled to the prize money if he demands it,

which is all that a contractual relationship
requires.

347

STATE OF MAINE
SPECIAL EDUCATION DUE PROCESS HEARING
Hearing #14.054H
Parent, individually and
as parent and legal
guardian of Child,
a minor
v.

)
)
)
)
)
)
)

ORDER

Falmouth School
Department
This decision is issued pursuant to Title 20-A M.R.S.A. 7202 et seq., Title 20 U.S.C. 1415 et
seq., and accompanying regulations. A due process hearing was held on September 5, 8, 9 and 12,
2014 in Portland, Maine. Present and participating throughout the hearing were: Parent; Richard
OMeara, Esq., attorney for the Parent; Eric Herlan, Esq., attorney for the Falmouth School
Department; Penny Wheeler-Abbott, consultant at Drummond Woodsum; Gene Kucinkas, Director
of Special Services, Falmouth School Department; and David Webb, Esq., Hearing Officer. Caitlin
Wright, Associate at Murray Plumb & Murray and Melanie Frazek, Esq., Due Process Hearing
Officer observed the hearing. Pauline Lamontagne, Education Specialist III with the Department of
Education, Observed the hearing on September 9, 2014.
Witnesses:
The Students Mother;
Christopher Kaufman, Ph.D., Psychological Evaluator;
Gretchen Jefferson, Ph.D., Behavioral Evaluator;
Kathleen Coffin, Lindamood Bell Tutor;
Gene Kucinkas, Director of Special Services, Falmouth School Department;
Kim Mosca, Special Education Teacher, Falmouth Elementary School; and,
Beth Weller, Speech Therapist, Falmouth Elementary School.
All witness testimony was taken under oath
I. PROCEDURAL BACKGROUND
On June 13, 2014 the Parent filed a due process hearing request on behalf of her daughter,
348

(Student). On August 11, 2014, a prehearing conference was held in Portland, Maine.
Documents and witness lists were exchanged in a timely manner. A prehearing conference was
held with the Hearing Officer, counsel and parties on August 27, 2014. A Prehearing Report and
Order was issued by the Hearing Officer on August 12, 2014. On August 27, 2014, the Prehearing
Report and Order was amended by agreement of the parties thereby adding the following additional
issue:
Whether the Students claims under the IDEA for the period between September 1, 2013December 17, 2013 were waived as a result of the Parents signing a Due Process Hearing
Withdrawal Request Form on December 17, 2013.
All parties agreed that evidence on this issue would be offered within the regularly scheduled
hearing dates and counsel would brief the issue in post hearing memoranda. It was also agreed that
the Hearing Officer would incorporate his ruling on this issue and any related damages in this
order.
The Parent distributed 653 pages of documents (herein referenced as P-#) and the District distributed
1,355 pages of documents (herein referenced as S-#) at the prehearing conference and at the hearing
with the agreement of the parties. Following the hearing, both parties requested to keep the
hearing record open until September 29, 2014 to allow the parties to prepare and submit closing
arguments due on September 22, 2014 and reply briefs by September 29, 2014. Pursuant to a post
hearing order issued on September 16, 2014, the initial closing arguments were limited to a
maximum of 35 pages and reply briefs to a maximum of 10 pages.
The District submitted a 27-page final argument memorandum and the Parent submitted a 35-page
final argument memorandum. The record closed upon receipt of the reply briefs on September 29,
2014. The parties further agreed that the hearing officers decision would be due on October 14,
2014.
II. ISSUES: Evidence was taken on the following issues:
1. Did the District fail to provide the Student with a free appropriate public education (FAPE)
349

and placement in the least restrictive environment during the 2013-2014 academic year?
2. Did the District violate the Students rights under the IDEA by not providing a Functional
Behavior Assessment for the Student during the 2013-2014 academic year?
3. If the answer to either 1 or 2 above are yes, what changes, if any, are necessary to the
Students IEP to ensure that she receives a FAPE in the least restrictive environment

during the 2014-2015 academic year?

4. If the answer to either 1 or 2 above are yes, is the Parent entitled to reimbursement of her
costs associated with the Lindamood Bell literacy tutorials or is the Student entitled to any
other remedy under the special education laws?
5. Are the Students claims under the IDEA for the period between September 1, 2013December 17, 2013 waived as a result of the Parents signing a Due Process Hearing
Withdrawal Request Form on December 17, 2013.

III.

FINDINGS OF FACT
1. The Student is X years old (d.o.b. XX/XX/XX) and resides with her mother in Falmouth,
Maine. She is beginning her X grade year at Falmouth Elementary School. [Parent
Testimony]
2. The Students mother (Parent), is a certified special education teacher with experience
instructing students with disabilities in both Florida and Maine. [Parent Testimony]
3. The Student has been diagnosed with Down Syndrome, has an intellectual disability as
well as Attention Deficit Hyperactivity Disorder. [S-514; Kaufman testimony] She is
currently eligible for special education and related services under the category of multiple
disabilities, reflecting an intellectual disability and other health impairments. [S-l89]
4. The Student began speech-language therapy through Child Development Services
(CDS) when she was six months old and communicated only through American Sign
Language until age four. [Parent testimony]
5. The Student attended the Lunt School in Falmouth for kindergarten (2010-2011) and was
found eligible for special education services under the category of Other Health
Impairment. [P-26] The Individualized Education Program (IEP) team determined that
the Student would receive 11.5 hours per week of direct instruction, and two hours each
per week of speech/language services, occupational therapy and physical therapy. [P-26]
6. In November 2010 the Students direct instruction services were reduced to 6.5 hours per
350

week, physical therapy was reduced to one and a half hours per week, with the addition of
30 minutes per week of adaptive physical education and consultation with a
speech/language pathologist. [P-48]
7. The Student attended first grade at Falmouth Elementary School (2011-2012). [Parent
testimony] The IEP team met in November 2011 and determined that the Student would
receive 10.5 hours per week of direct instruction, 1.5 hours per week of physical therapy,
2 hours per week of occupational therapy and 2 hours per week of speech/language
therapy. [P-104] The IEP also included 30 minutes per week of adaptive physical
education and speech/language consultation. [P-104]
8. The IEP team met on June 6, 2012, and reduced the Students pull out services to promote
opportunities for the Student to participate with her peers as much as possible. [P-131]
The IEP team determined that the Student would receive 10.5 hours per week of direct
instruction, 1.5 hours per week of physical therapy 2 hours per week of occupational
therapy and 30 minutes per week of in-class speech/language therapy. [P-131] It was
further determined at the June 6, 2012 meeting that no extended year services (ESY)
would be provided as the Parent planned to have the Student attend Camp Senter, a
mainstream camp program. [P-131]
9. The Student began second grade in September, 2012. [Parent Testimony] Her special
education teacher was Rachel Roberts and her general education teacher was Carol
Daigle. On November 7, 2012, the Students IEP was modified without a team meeting
by adding an additional physical therapy goal for the Student. [S-1349]
10. At the time of the November 7, 2012 IEP meeting, the Student was reported to be reading
at level 8 on the Developmental Reading Assessment (DRA) scale. [P-156] The team
set three annual reading goals: mastering final e endings, mastering consonant blends
with 90% accuracy, and attaining Level 16 (mid-first grade) on the DRA by November
2013. [P-158] It also approved a token-based behavior plan. [P-176]
351

11. In late November 2012, the Parent emailed the Students teachers to express her concern
with the Students reading instruction. [P-177].
12. On February 26, 2013, the IEP team met and determined that the Students specially
designed reading instruction would increase to a total of 1 hour daily and specially
designed math instruction would increase to a total of 45 minutes daily. [S-1345] The
team also determined that the Students re-evaluation testing would occur within 45
school days. [S-1345]
13. Jayne Boulos, the Districts School Psychologist, evaluated the Student as part of her
triennial evaluation at the end of second grade. She reported that the Students cognitive
scores dropped from when she was four year old, and that her scores were in the
extremely low range. [S-6] She noted that this was not surprising given the task
demands on the assessments, and that her innate skill can no longer always be enough.
[S-6] Ms. Boulos recommended academics taught at the Students level and progress
monitoring, direct social skills training and positive behavioral supports. [S-6].
14. Rachel Roberts, the Students Special Education Teacher, also administered academic
assessments as part of the Students triennial evaluation. [S-7] Ms. Roberts noted that the
Students test scores on the Phonological Awareness Test were below average, but that
she was developing in her phonologic skills. [S-9] The Students score on the Test of
Early Written Language-3 has a below average score of 81. Her score on of Early
Reading Ability-3 score of 72 was in the 3rd percentile. [S-11] Ms. Roberts concluded
that the Students scores were not surprising, given that she requires much support,
repetition, supplemental aids and prompts. [S-12]
15. Susan Christy, a Speech/Language Pathologist with the District, also evaluated the
Student in the spring of 2013 and concluded that the Student has a good understanding
and use of basic vocabulary and recognizes word relationships and general critical
features with which to determine word relationships. [S-19] Ms. Christy reported that
352

the Student made significant gains in her expressive language skills and that she is able
to state similarities but requires cues to understand the more critical thinking skill of
determining how words differ semantically. [S-20]
16. The IEP team met on May 14, 2013 following the Students triennial evaluations in April
and May 2013. [S-30] The IEP team determined that the Student would receive ESY
services 2 times per week for 3 hours and Occupational Therapy and Speech Language
Services 2 times per week for 30 minutes. [S-31]
17. The Student did not access the 2013 ESY programming offered by the District. [Parent
Testimony]. Instead, the Parent privately enrolled the Student in the Bates College
Summer Reading Program, which met for 2 hours, once a week, for 6 consecutive weeks.
[Parent Testimony]
18. In September, 2013, the Student started her third grade at Falmouth Elementary school with a
new educational team. Her regular education teachers included Ms. Coppinger and Ms. Palmer.
[S-189] Beth Weller was the Students speech pathologist. Her special education teacher was
Kim Mosca, who also served as the Students case manager and literacy instructor. [S-189]
The Students math instruction was delivered by Megan Huckins. [S-189]
19. The Students reading levels were documented using the DRA level system which is
correlated to student grade levels. [Mosca testimony; S-192] DRA level 8-16 is within the
1st grade level. [Kucinkas Testimony] The levels were distinguished between able to read
with minimal support and able to read with support [Mosca testimony] The labeling of
DRA of books is usually done not by teachers but specialists. [Kucinkas Testimony]
20. An IEP meeting was held on October 3, 2013 to discuss parental concerns. [S-96] As a result
of this meeting, the Students physical therapy was reduced by 20 minutes per week. 10
minutes per day of Educational Technician (Ed Tech) support was added to the Students
IEP to work on sensory tools. [S-98] The District also proposed a structured reading
program for the Student. [S-99]
353

21. At an IEP team meeting on October 31, 2013, the Students DRA level for her ability to
read with minimal support was determined to be at a level 8, while her instructional level
was determined to be at a level 10. [S-189]
22. At the October 31, 2013 IEP meeting, the team included a social skills goal and determined
that the Student would receive 8 hours and 45 minutes per week in specially designed
instruction in literacy and math. [S-226] The team also determined that the Student would
receive 60 minutes per week of physical therapy, 2 hours per week of occupational
therapy (1.5 in special education classroom and .5 in the regular classroom), 2 hours per
week of speech therapy (1.5 in special education classroom and .5 in the regular
classroom), 30 minutes per week of social skills activities and weekly participation in a
lunch-time friendship group with her guidance counselor. [S-189; S-154-155]
23. The Students literacy instructional goals were established at the IEP team meeting held
on October 31, 2013. [Mosca testimony; S- 221 S-225] The Students DRA reading
goal was set at level 16, the reading goal from her prior IEP. [S-216; S-224]
24. In a Written Notice dated October 31, 2013 and sent to the Parent on November 5, 2013,
the District proposed that the Student receive 60 minutes per day of reading instruction in
Spire [sic]. [S-155]
25. SPIRE is a teacher directed, systematic, multisensory, synthetic phonics literacy
instructional program developed by Orton-Gillingham. [Kaufman testimony; S- 515] The
Students literacy teacher, Kim Mosca, was not trained in SPIRE at the time of the
Written Notice, and did not receive SPIRE training until August 2014. [Mosca testimony]
26. On November 5, 2013, the Parent filed a due process hearing request. [S-319] Her
amended complaint, dated December 2, 2013, included the following allegations: 1) Lack
of effective instruction from [School Year] 2011 to present.. due to non-evidenced based
instructional programsdemonstrated by lack of progress; 2) Lack of effective
programming and scheduling; 3) Lack of trained staff; 4) Lack of staff training in
354

inclusion and Down syndrome; 5) Failure to complete accurate evaluations 6) Failure to

provide the Student with a gluten-free lunch; and 7) Failure to apply the appropriate
diagnostic criteria for the Student. [S-319]
27. In a letter dated November 14, 2013, the Parent wrote to Mr. Kucinkas and Polly Crowell
(the Districts co- director of Special Education) stating that she was not in agreement
with the proposal to use the SPIRE reading program for the Student. [Parent testimony, S269] In particular, the Parent was concerned that SPIRE was not evidenced based
because there was no objective research proving that it could help the Student. [Parent
testimony, S-269]
28. Mr. Kucinkas and the Parent met on December 13, 2013, and reached an agreement, as
documented in Mr. Kucinkass letter dated December 12, 2013. [S-335] The terms of the
agreement included 1) Use of a daily communication sheet; 2) A weekly e-mail from the
Students case manager; 3) A monthly meeting among Ms. Mosca, Mr. Kucinkas, and the
Parent; 4) An evaluation by Dr. Kaufman; 5) The previously promised AT evaluation; 6)
The previously promised consultation by Dr. Jefferson; 7) A reading of determinations at
the end of IEP Team meetings; and 8) A promise to provide written notice 7 days prior to
implementation. [S-334] Mr. Kucinkas noted at the end of this letter that the Parent said
that based upon this agreement, you have said that you would withdraw your current due
process hearing. [S-335] There was no discussion between Mr. Kucinkas and the Parent
regarding the Students SPIRE program. [Kuncinkas testimony]
29. On December 17, 2013, the Parent signed a Hearing Withdrawal Request form, drawing a
box and placing a checkmark next to a paragraph that stated With Prejudice All
hearing issues were settled in a written Resolution or Mediation Agreement. [Parent
Testimony, S-351]
30. The Parent testified that she chose this option on the form because it gave her what she
needed and she didnt want a hearing in January as she was too busy with the holidays.
355

[Parent Testimony] The Parent testified that it was not her intent to release her past
claims against the District. [Parent Testimony] When the Parent signed the hearing
withdrawal form she did not disclose to the District that she was reserving the right to file
for claims prior to the date she signed the form. [Parent Testimony]
31. While the Parent was not represented by counsel at the time she signed the withdrawal,
she had recently worked with an advocate who had provided advice on other matters.
[Parent testimony]
32. Gene Kucinkas testified that the District did not take steps to put SPIRE in place for the
Student after the October 31, 2013 IEP team meeting since the Parent informed the
District that she was not in agreement to use SPIRE. [Kucinkas testimony; S-261-269]
33. Kim Mosca testified that she did not use the SPIRE program with the Student, but
provided daily literacy instruction to the Student using level system books, the Wilson
FUNdamentals fluency program, and Lexia, a computer-based phonics program. [Mosca
testimony]
34. Ms. Mosca kept records of the Students reading on daily instruction sheets, which she
sent home to the Parent each day. [Mosca testimony; S-B4-B60] These instruction sheets
documented a structured literacy instruction format involving predictability with
characters, decoding texts, pictures and grammar sequencing. [Mosca testimony] After
the Student read the text, Ms. Mosca highlighted errors with the Student. [S-1043; Mosca
testimony]
35. The Student utilized the Lexia reading program to work on her segmenting, consonants,
vowels and medial word skills. [Mosca testimony]. The Student was not able to use
Lexia independently because she was distractible. [Mosca testimony]
36. Beth Weller, the Students Speech/Language Pathologist testified that she worked with
the Student for three 30 minute pull out speech sessions per week. [Weller testimony]
For two of the sessions she worked with the Student on a 1:1 basis, and one of the
356

sessions was with two other students. [Weller testimony] Ms. Weller also worked with
the Student on social pragmatics and reciprocal communication skills. [Weller testimony]
Ms. Weller testified that she worked with the Student on the goals established in her IEP,
including speech sounds, syllables, accuracy, verbal expression, multiple definition
words, initiating and using follow-up questions, word endings and expression of concepts.
[Weller testimony; S-195-198] As part of the Students Speech/Language consultation,
Ms. Weller met weekly with other staff order to coordinate and reinforce the Students
literacy skills and training. [Weller testimony] Ms. Weller testified that communication
between team members was excellent. [Weller testimony]
37. The Students articulation goal, cited in her October 31, 2013 IEP, was to achieve 80%
accuracy in 8/10 sessions. [S-194] Ms. Weller testified that the Student made decent
progress with her articulation goal, where she was able to achieve 80% accuracy in 4/10
sessions by March 28, 2014. [S-1139] Ms. Weller noted that, although it was clearly
difficult for the Student, she felt that the Student had a beneficial year and made
reasonable progress. [Weller testimony]
38. Ms. Weller testified that she is familiar with both the LiPS and SPIRE literacy programs.
[Weller testimony] She explained that SPIRE offers a comprehensive reading program
that uses phonological awareness concepts including vocabulary, comprehension,
encoding, spelling, phonemic and fluency. [Weller testimony] She further noted that
although SPIRE works on a different use of mouth than the LiPS program, there are lots
of ways to develop phonemic awareness skills with students and that the Student is ready
for SPIRE. [Weller testimony]
39. Ms. Mosca wrote an e mail to the Parent on January 10, 2014, noting that the Student was
reading at a DRA level 13. [S-356] Ms. Mosca also reported that there were two
incidents that involved the Student hitting other students during the week, which she
believed were mostly attention seeking and not vindictive behaviors. [S-356]
357

40. Dr. Gretchen Jefferson, Behavioral Evaluator, was retained by the District in January,
2014 to conduct a program evaluation to inform planning for increasing [the Students]
engagement and productivity during general education activities and to determine whether
her time in the general education classroom can be increased [S-482]
41. As part of her evaluation, Dr. Jefferson interviewed school staff and the Parent, and
observed the Student working on her specially designed literacy program with Kim Mosca
on January 16 and 17, 2014. [S-482; Jefferson testimony] During this observation, Dr.
Jefferson testified that the Student seemed to know what was expected, was oriented to
the instruction, demonstrated accuracy of 80% and no apparent loss of instructional time
or the Students engagement during the 70 minute session. [Jefferson testimony] Dr.
Jefferson noted that the Student was engaged in both pull-out and mainstream
programming, however she reported that at recess the Student seemed isolated and did not
actively engage with her peers. [Jefferson testimony]
42. The Student participated in a social skills program from 8:45 a.m. to 9:00 a.m. on
Tuesdays and Thursdays, however she occasionally missed these programs due to her late
arrival at school. [P-234, 235; Mosca testimony]
43. Dr. Jefferson opined that based on her observations the Districts program was excellent
and that the team was making it work. [Jefferson testimony] She noted, however, there
were areas within the program where it could be more efficient. [Jefferson testimony] Dr.
Jeffersons findings and recommendations were documented in a program evaluation
report dated March 18, 2014. [S-482]
44. Dr. Jefferson also noted no observations or incidents of the Student having significant
behavior issues or being disregulated as she was gathering information for her March 18,
2014 report. [S-482; Jefferson testimony]
45. In January 2014, Dr. Kaufman was hired by the District to evaluate the Students
neurodevelopment including memory, language, visual spatial and sensory/motor
358

functioning. [Kaufman testimony] Dr. Kaufman understood that the parties had agreed to
use him as the evaluator of the Student. [Kaufman testimony]
46. Dr. Kaufman evaluated the Students academic functioning using the Wechsler Individual
Achievement Test, the Wilson Assessment of Decoding and Encoding, (WADE), the
Gray Diagnostic Reading Test, the Gray Oral Reading Test, and the Adaptive Behavior
Assessment System. [Kaufman testimony; S-501].
47. Dr. Kaufmans original report reflected his understanding that the Student was using the
SPIRE program. [S-448] Dr. Kaufman issued a corrected report after later learning that the
Student had not received the SPIRE program. [Kaufman testimony, S-501]
48. Dr. Kaufmans findings reflected that the Student has substantially limited oral reading
skills compared to her age and grade, citing scores consistent with an early first grade
functional level. [Kaufman testimony; S-527, S-501]. Dr. Kaufman noted that the Student
has pervasive challenges in the broader developmental domain and fairly substantial
challenges across intellectual, processing, academic, and self-regulatory domains that
will impact her development of a range of adaptive functions as well. [Kaufman
testimony, S-508]
49. Dr. Kaufman observed Ms. Mosca doing phonetic and word family work as well as
guided oral reading with the Student. [Kaufman testimony] While Dr. Kaufman
recommended additional instructional approaches, he did not observe any instruction
offered to the Student by the District that was either inappropriate or significantly
inconsistent with the types of reading practice done for students who have reading
disorders. [Kaufman testimony; S-516]
50. Dr. Kaufman recommended a heavily teacher directed, systematic, multisensory, synthetic
phonics instructional program of the type developed by Orton-Gillingham. [Kaufman
testimony; S- 515] The four Orton-Gillingham instructional programs include: 1) The
Lindamood Phoneme Sequencing Program (LiPS); 2) The Orton-Gillingham reading
359

program; 3) Barbara Wilson's adaptation; and 4) SPIRE. [Kaufman testimony]

51. Dr. Kaufman testified that Orton-Gillingham-inspired programs are multisensory to the
extent that students engage the use of their bodies, especially their fingers, arms and hands
in understanding the sound structure of language. [Kaufman testimony] He recommended
the LiPS program for the Student in light of its strong emphasis on developing of the oral
motor mouth movement to address the Students articulation issues. [Kaufman testimony]
Dr. Kaufman testified that there are many literacy specialists who would see SPIRE as
being a program that is reasonably calculated to benefit the Student. [Kaufman
testimony]
52. Dr. Kaufman testified that the Lexia screen-based reading program has a strong
research base and can be quite effective and powerful. [Kaufman testimony] The
challenge with screen-based programming is that the student has to be able to maintain
independent focus. Accordingly, there has to be someone, either an educational
technician or a resource teacher, paying attention to the student to cue him or her to
attend, and that can happen effectively in resource rooms and in other remedial learning
contexts. [Kaufman testimony]
53. Dr. Kaufman testified that it is possible to successfully transition from a LiPS program
into other forms of reading instruction. [Kaufman testimony]
54. Dr. Kaufman testified that the Students improvement from 9 vowel sounds to 11 vowel
sounds and 21 consonant sounds to 24 consonant sounds following the 40 private LiPS
sessions was fairly limited and somewhat disappointing. [Kaufman testimony]
55. While SPIRE and other programs have less direct research support, its construction is
based upon research done on its programmatic elements that have been assembled into the
SPIRE program. [Kaufman testimony]
56. In an e-mail dated February 14, 2014, Kim Mosca wrote to the Parent stating that the
Student was doing great with reading consonants, and has begun reading DRA level 14
360

books. [S-393]
57. In an e-mail to the Parent dated March 12, 2014, Ms. Mosca noted that the Student was
reading at a DRA level 14. [S-437] On March 21, 2014, Ms. Mosca wrote an e-mail to the
Parent noting that the Student dabbled in [DRA] level 16, but reading at that level was
a stretch for independent reading. At this time, a cold read (no pre-teaching of the
book to the Student before reading) remained difficult for the Student at a level 14.
[Mosca testimony; S-535] In May 2014, the Student achieved an instructional DRA level
of 14 and an independent DRA level of 10. [Mosca testimony]
58. In an e-mail to Kim Mosca dated February 14, 2014, the Parent noted that that she was
glad that [the Student] was making limited progress, although she stated that she
continued to advocate for her to have an instructional method that fits her needs [S394]
59. The IEP team then met to review Dr. Kaufmans and Dr. Jeffersons evaluations on March
28, 2014. [S-539] More meeting time was needed, and a follow up meeting was scheduled
for a few days later. [S-546] The Parent requested a postponement of the follow up meeting
because the physical therapist was unable to attend. [Kucinkas Testimony; S-547]
60. On April 17, 2014, the Parent informed the District that she would be pulling the Student out of
her literacy program beginning on May 2, 2014, in order to have her receive private LiPS
literacy instruction during the regular school day. [S-596, 736]
61. At the May 1, 2014 IEP team meeting, it was determined that the District would provide
the SPIRE literacy program, the Great Leaps methodologies, additional literacy goals,
and additional consultation with Dr. Jeffereson. [S-677; S-711-714]
62. Since that time, Dr. Jefferson provided consultation [S-A-8 A- 10] and has developed a
draft behavior plan for use with the Student. [S-l 180] The Parent has continued to keep
the Student out of school for literacy instruction during the new school year. [Parent
testimony]
361

63. In April and May of 2014, the Student engaged in several hands-on behavioral incidents
with other students. [S-548, 580; Mosca Testimony]
64. On April 29, 2014, Dr. Jefferson requested that Falmouth fund three more hours of her
time to develop a formal behavior plan for the Student due to the uptick in hands-on
behavior. [S-660]
65. On May 1, 2014, the Students IEP Team met to discuss the Students behavior support
plan, her reading goals and other aspects of the Students programming. [S-177]
66. At this meeting, the IEP team determined that the zones of regulation behavior system
would be used to address the Students behavior regulation issues, along with the use of
coins instead of tokens. [S-732] In addition, the District would contract with Dr. Jefferson
for up to three visits, to observe and look at target behaviors, behavioral
programming[and] would seek to implement Dr. Jeffersons recommendations. [S177] The District denied the Parents request for LiPS instruction and agreed only to
provide the Student with SPIRE instruction beginning in September 2014 [S-808]
67. The Parent requested a functional behavior assessment (FBA) for the Student on May
12, 2014. [S-751]
68. Following her review, Dr. Jefferson concluded that it would not be appropriate to conduct
a functional behavior assessment (FBA)49 at that time. [S-774]
69. Dr. Jefferson explained that in order to conduct a reliable FBA, it was necessary to gather
data in a very structured manner, including before and after behaviors and reinforcing
behaviors. [Jefferson Testimony]
70. In her behavior consultation notes dated May 28, 2014, Dr. Jefferson stated that the
Student was not able to effectively use the zones of regulation system, which was too
complicated for the Student. [Jefferson testimony; S-A-9] Dr. Jefferson noted that other
49

A functional behavior assessment (FBA) is an evaluation that provides the foundational

support for a students behavior support plan. Maines regulations specify that an FBA is a school
based process used by the [IEP] Team . . . to determine why a child engages in challenging
behaviors and how the behavior relates to the childs environment. MUSER I.15.
362

factors could be contributing to the Students behavior issues, including regularly missing
her morning social group and decreased instruction in social/conversation skills.
[Jefferson testimony] Dr. Jefferson also noted that the Students removal from school to
attend private literacy training could have deprived her with respect to peer interaction.
[S-A-8]
71. Dr. Jefferson testified that it was a permissible practice to implement a behavior plan
without conducting an FBA with respect to programs in the construction phase.
[Jefferson testimony]
72. Dr. Jefferson recommended further data collection on the Students aggression, along
with the development of a formal behavioral support plan to address the behavior
concerns. [S-A-8-10] A Point System Protocol was prepared by Dr. Jefferson on June 4,
2014, along with a draft Behavior Support Plan on June 11, 2014. [S-1180]
73. On April 17, 2014, the Parent provided the District with written notice that the Student
would be receiving private LiPS instruction beginning in early May 2014 [S-596]. The
Parent retained Kathleen Coffin, a private language therapist capable of delivering the
LiPS program. [Parent testimony] Ms. Coffin is a Language Therapist/Reading
Consultant in private practice who has a bachelors degree in psychobiology and has
been trained in LiPS and other Orton/Gillingham literacy programs. [Coffin testimony]
74. Kathleen Coffin testified that on May 5, 2014 she began working with the Student on the
LiPS program at a frequency of 3 times per week for approximately one hour. As noted
in an undated Progress Report, Ms. Coffin performed an informal assessment on the
Students strengths/weakness during her initial session with the Student. [P- 584] In this
report, she noted that the Student was able to correctly identify most of the consonant
sounds and a few of the vowel sounds. [P- 584] The report also stated that the Student
had difficulty when the letters were combined into words. [P- 584]
75. Ms. Coffin testified that unlike other Orton/Gillingham programs, LiPS has more of an
363

oral/motor component and establishes a students phonemic awareness to get to where

they can use other literacy programs. [Coffin testimony] Ms. Coffin testified that the
average student undergoes 120 hours of LiPS training, and that the Student has had about
50 hours of training as of September 5, 2014. Ms. Coffin noted that the Student sometime
has trouble keeping attention and doesnt always last the whole hour. [Coffin testimony]
Ms. Coffin testified that in her opinion it is easier for the Student to feel sounds-in her
mouth than to tell her about the sounds. [Coffin testimony]
76. In an undated Progress Report prepared by Kathleen Coffin, it was noted that the
Student was able to correctly identify all of the consonant sounds and 11 vowel sounds on
August 3, 2014 after 40 LiPS literacy sessions. [P- 584] Ms. Coffin testified that she
doesnt test using qualitative measures but only performs informal testing when a student
seems pretty constant. [Coffin testimony]
77. Ms. Coffin testified that it would be inappropriate for the Student to participate in a
traditional language program or another Orton/Gillingham literacy program until she
completed her LiPS training. [Coffin testimony]
78. The Parent filed for the current due process hearing on or about June 13, 2014.
IV.

SUMMARY OF THE PARTIES ARGUMENTS

Brief summary of the position of the Parent:

The Parent argues that all three of the Students IEPs, developed and implemented prior to and
during the 2013-2014 school year, failed to provide the Student with a FAPE. She claims that, the
reading component of the Students IEPs insufficiently targeted the Students decoding skills. She
cites the IEP developed on October 31, 2013, which purported to provide the SPIRE and claimed
that the District never took any steps to implement this program. She stated that, while she may
have disagreed with the IEP Team decision at the time, the District remained obligated to move
forward with programming as determined. She asserts that, at the very least, the District should
have notified her that it was suspending the implementation of SPIRE pending further discussion
364

of the programs research basis. She notes that the SPIRE program has not been subjected to peerreviewed research, contrary to IDEA standards, which require that services provided to children
with disabilities be based on peer-reviewed research to the extent practicable.
The Parent argues, in the alternative, that it was practicable for the District to use the Lindamood
Phoneme Sequencing Program (LiPS) with the Student, which is a peer- reviewed program. She
states that the Students IEP, as amended in May 2014, remained inappropriate in the area of
literacy skill instruction due to the continued lack of direct peer-reviewed research and Dr.
Kaufmans recommendations.
The Parent also claims that, the District failed to provide direct social skills instruction to help the
Student attain her goals on this critical set of functional skills. She asserts that none of the IEPs
provided for any direct specialized instruction in this area for the Student. She requests
compensatory services designed to provide the Student with services to allow her attain the level of
skill and function she would have developed had proper services been delivered in a timely fashion.

The Parent argues that the District failed to conduct a timely FBA. When the Students behavioral
spiked in April and May 2014, the Parent requested a functional behavior assessment (FBA) to
determine the cause of these increased negative behaviors. She asserts that, despite her request, the
District inappropriately failed to conduct an FBA and disregarded a recommendation from Dr.
Jefferson that an FBA would be a best practice when formulating a behavioral support plan for
the Student. She states that, instead, the District improperly implemented a behavior support plan
that was a) drafted without parental input; b) never reviewed with her at an IEP Team meeting; and
c) prepared without full knowledge of the Students sensory issues, as set forth in her most recent
OT evaluation.
Finally, the Parent claims that signing of a Withdrawal Request Form in December 2013, was not a
voluntary and intentional release of her FAPE violation claims that she alleges to have occurred
during the first 3 months of the Students third grade year. She states that it was her intent to
365

merely ensure that the hearing, scheduled for January 2014, did not go forward as scheduled in
order to have time to review the independent evaluation results before potentially re-filing her
hearing request. She notes that IDEA waivers require a higher standard of review; that she did not
have the benefit of consulting with counsel; and that she did not adequately understand the meaning
of the term with prejudice before drawing and checking a box on the form that she found to be
confusing.
B. Brief summary of the position of the District:
The District argues that the Parent has the burden of proving that each of the IEPs she is
challenging failed to meet IDEA standards and that the Student suffered educational harm as a
result. It asserts that the Hearing Officer must view the IEP as a unitary whole and in terms of what
was reasonable when the document was promulgated, not in hindsight. It asserts that special
education is not a guarantee of success, but a reasonable calculation or programming that will result
in educational gains in the least restrictive environment and that the evidence shows that the
Students IEP met this standard.
The District also argues that the law is well settled that parents do not have the right to compel a
school district to provide a specific program or educational methodology. It claims that the Student
received a comprehensive literacy program from Kim Mosca, the Students special education
teacher during the 2013-14 school year. It notes that all the school witnesses testified in favor of
the beneficial nature of the programming in the area of literacy delivered by Ms. Mosca and that the
Student demonstrated success and a level of progress consistent with what might be expected of
her, given the nature of her disability. It highlighted Dr. Kaufmans testimony that he found
nothing negative about the reading program the Student received during her third grade year.
The District also argues that the Students DRA levels, moving from an instructional level of 10 to
14 between October, 2013 and April 2014, suggest that the Student was benefitting from her
literacy program. It points to Ms. Moscas qualitative assessment that the Students independent
DRA reading level moved from an 8 to a 10 during the similar period. The District suggests that
366

there was no evidence that the Student should have progressed more notably during this time
period, noting that even the Parent stated that she had seen reading improvement during the year.
With regard to the SPIRE program, the District asserts that the Parent expressly stated that she was
not in agreement with this program for the Student. As a result, the District believes that it
appropriately withheld this part of the Students reading program. It points to expert witnesses
testimony that approved the appropriate nature of the SPIRE program for the Student, and the likely
benefits she will receive when it is delivered to her.
The District urges that the Parent also waived her claim of FAPE violations alleged to have
occurred during part of the 2013-2014 school year when she signed the Withdrawal Request Form
in December 2013. It argues that the language of the Form clearly states that all hearing issues
were resolved, including past claims against the District relating to the Students literacy and other
programming. The District asserts that, if the Parent did not intend to waive past claims, her
signature on this form was part of her plan to deceive the District into entering into an agreement
that she knowingly did not intend to follow.
The District believes that it appropriately denied the Parents request for an FBA in light of Dr.
Jeffersons recommendations. It states that it followed the advice of Dr. Jefferson, the sole
behavior expert in this case, who testified that that an FBA was not appropriate in light of the type
and frequency of the Students reported behaviors.
The District urges that the Parent failed to establish any educational harm to the Student, and
therefore her request for compensatory education should be denied.

V.

LEGAL STANDARD AND ANALYSIS

A. Burden of Proof
Although the IDEA is silent on the allocation of the burden of proof, the Supreme Court has
held that in an administrative hearing challenging an IEP, the burden of persuasion,
determining which party loses if the evidence is closely balanced, lies with the party seeking
367

relief. Schaffer v. Weast, 126 S.Ct. 528, 537 (2005). As such, the Parent bears the burden of
persuasion in this matter.50
B. The Students claims under the IDEA for the period between September 1, 2013December 17, 2013 are barred as a result of a private settlement agreement and waiver signed
by the Parent.
The Parent cites a Third Circuit case for the proposition that IDEA waivers should be held to a
higher standard of review. W.B. v. Matula, 67 F.3d 484, (3d Cir. 1995). In Matula, the court held
that it is necessary to review the totality of circumstances when considering an alleged IDEA
waiver, taking into account whether 1) the language of the agreement was clear and specific; 2) the
consideration given in exchange for the waiver exceeded the relief to which the signer was already
entitled by law; 3) the signer was represented by counsel; 4) the signer received an adequate
explanation of the document; 5) the signer had time to reflect upon it; and 6) the signer understood
its nature and scope. Id. at 497.51
Even applying the Matula standards, I find that the Parent waived her claims under IDEA for the
period between September 1, 2013-December 17, 2013. First, the Parent checked and initialed a
hand-written box next to a paragraph that indicated that she wished to withdraw her hearing with
Prejudice, which states in parenthesis on the form: all hearing issues were settled in a written
resolution or mediation agreement. [S-351] While the paragraph on the form that Parent did not
sign contained redundant language with regard to the with and without prejudice option, there
was no testimony from the parent that she was confused by this choice, which ultimately she did
not select.
The Parents amended hearing request included an allegation that the District failed to provide
effective instruction from [School Year] 2011 to present.. due to non-evidenced based

50

The issue of the burden of proof on the Parents waiver is discussed below, infra.
No first circuit cases were located that address the issue of whether IDEA waivers should be held
to a higher standard of review.
368
51

instructional programsdemonstrated by lack of progress [S-319] The evidence supports a

finding that the Parent knew that by dismissing her hearing request, she was dismissing her claim
for compensatory education damages for the Districts alleged instructional failures since 2011.
While the Parent was not represented by counsel at the time she signed the withdrawal, she had
recently worked with an advocate who had provided advice on other matters. [Parent testimony]
The Parent is an experienced special education teacher, more sophisticated than most parents with
respect to special education issues. [Parent testimony] Therefore, while there was no testimony
from the parent that she was confused about these documents, she knew how to avail herself of
legal advice or advocacy in the event that she had any questions about the terms or ramifications of
the withdrawal request.
This form was signed in conjunction with December 13, 2013 settlement letter in which outlined 10
different items that the District had agreed to do, ranging from Student evaluations to specific
communication and notice protocols with the Parent. [S-335]. While the IDEA requires student
evaluations and communication with parents, there is no evidence to support a finding that the
District was offering items that it was already required to do under the IDEA or MUSER. Mr.
Kuncinkass wrote that based upon this agreement the Parent would withdraw her current due
process hearing request. [S-335]. Furthermore, there is no evidence that the District failed to
comply with the settlement terms outlined in this letter.
Lastly, the evidence does not support a conclusion that the Parent was given insufficient time to
review the December 13, 2013 proposed agreement before signing the withdrawal request form on
December 17, 2014. The Parents testimony on this subject was contradictory. On the one hand,
she testified that she thought all issues were settled and that she didnt want a hearing in
January because she was too busy with the holidays coming up. On the other hand, she stated
that she never intended to release her past claims52. [Parent testimony] I find that the Parents
52

The Parent did not notify that Mr. Kucinkas of her intent to preserve claims prior to the filing of
her hearing request on November 5, 2013.
369

testimony that she was reasonably confused about the waiver form or her reasonable belief that she
was preserving claims prior to December 17, 2013 is not credible.
Under Maine law, waiver is an affirmative defense, so the burden of proving its existence rests with
the District. Blue Star Corp. v. CKF Properties, LLC, 2009 ME 101 25, 980 A.2d 1270, 1276
(Me. 2009). I find that the District met its burden and that the Parent waived her claims that
occurred prior to December 17, 2013.

C. The District provided the Student with a free appropriate public education (FAPE) and
placement in the least restrictive environment during the 2013-2014 academic year.
The U.S. Supreme Court has prescribed a two-part test for analyzing challenges to an IEP and
educational placement. First, has the State complied with the procedures set forth in the Act? And
second, is the individualized education program developed through the Acts procedures reasonably
calculated to enable the child to receive education benefits? Board of Educ. v. Rowley, 458 U.S.
176, 206-207 (1982). The First Circuit suggests that the first part of this test is more instructive
than dispositive, and that compliance with the second part is likely to nullify a violation of the first.
See Town of Burlington v. Dept. of Educ., 736 F.2d 773, 788 (1st Cir. 1984). (The ultimate
question for a court under the Act is whether a proposed IEP is adequate and appropriate for a
particular child at a given point in time.)
Pursuant to that standard, procedural violations will undermine an IEP only if there is some
rational basis to believe that procedural inadequacies compromised the pupils right to an
appropriate education, seriously hampered the parents opportunity to participate in the formulation
process, or caused a deprivation of educational benefits. Roland M. v. Concord Sch. Comm. 910
F.2.d 983, 994 (1st Cir. 1990)
i. Literacy Instruction
In a Written Notice, dated October 31, 2013, the District proposed that the Student receive 60
minutes per day of literacy instruction in the SPIRE program. [S-155] In a letter dated November
370

14, 2013, the Parent wrote to the District stating that she was not in agreement with the proposal to
use the SPIRE as there was no objective research proving that it could help the Student. [Parent
testimony, S-269] As a result, the District did not provide the SPIRE program to the Student as
determined at the October 31, 2013 IEP team meeting. The District argues that the Parent knew or
should have known that the SPIRE program was not provided to the Student, and that the Districts
failure to offer the SPIRE program is more properly the responsibility of the Parent who refused to
permit the program to happen.
There is no evidence on the record, however, that the Parent openly obstructed or refused to permit
the SPIRE training. Rather, in a letter dated November 14, 2013, the Parent wrote to Mr. Kucinkas
stating that she was not in agreement with the proposal to use SPIRE as she was concerned that it
was not evidenced based. [Parent testimony, S-269] The evidence in this case does not support a
finding that the Parents behavior rose to a level of parent obstructionism as suggested by the
District, thereby relieving it of its obligation to fulfill the requirements of the Students IEP. 53
Unlike the obstructionist cases cited by the District, there is no evidence that the Parent prevented
the District from providing programming to the Student, and the District made no effort to follow
up with the Parent with regard to her lack of agreement with SPIRE.54
I find that the Parent believed that the Student was being trained in SPIRE. The Parents own
testimony and by Dr. Kaufmans first report in which stated that the Student was using the SPIRE
program supports this finding [Kaufman testimony, S-448].
As set forth in MUSER VI.2.I it is ultimately the Districts responsibility, even if Parents disagree,

53

The Parents disagreement in this case can be distinguished from the cases cited by the District: In Lessard v. WiltonLydenborough Cooperative Sch. Dist. 518 F.3d 18, (1st Cir. 2008) the Parents unreasonable delay in acting upon a
completed IEP despite several efforts by the district to identify the parents concerns. In Roland M. v. Concord Sch.
Comm. 910 F.2.d 983, 992 (1st Cir. 1990), the parents removed the Student from school and had specifically asked the
school to refrain from independently testing the child, putting the district in a poor position to remedy the omissions.
54

The District did not attempt to address this issue in connection with the settlement discussions
with the Parent leading up to the letter prepared by Mr. Kucinkas. [S-335]
371

to ensure that the IEP includes the services that the child needs.55
While the Districts failure to provide the SPIRE literacy program constitutes a procedural violation,
there must also be a finding that this procedural inadequacy was severe enough that is deprived the
Student of a FAPE. Roland M., 910 F.2d at 994. The question, therefore, is whether the
implementation of the IEP, as a whole, provided a FAPE despite the procedural violation?
For this question, it is necessary to review the Students literacy program during the 2013-2014
academic year which was implemented by her special education teacher Kim Mosca. Ms. Mosca
instructed the Student in literacy for approximately 60 minutes per day on a 1:1 basis using level
system books, the Wilson FUNdamentals fluency program, and Lexia, a computer-based phonics
program. [Mosca testimony]

Beth Weller, the Students Speech/Language Pathologist testified that she worked with the Student
for three 30 minute pull out speech sessions per week and worked with the Student on social
pragmatics, reciprocal communication skills and the goals established in her IEP, including speech
sounds, syllables, accuracy, verbal expression, multiple definition words, initiating and follow up
questions, word endings and expression of concepts. [Weller testimony; S-195-198]

As part of

the Students Speech/Language consultation, Ms. Weller met weekly with other staff order to
coordinate and reinforce the Students literacy skills and training.

55

MUSER VI.2.I states in relevant part as follows:

The IEP Team should work toward consensus, but the SAU has ultimate responsibility to ensure that a child is
appropriately evaluated; that the IEP includes the services that the child needs in order to receive FAPE; and that the
childs placement is in the least restrictive educational placement. It is not appropriate to make evaluation, eligibility,
IEP or placement decisions based upon a majority vote. If the team cannot reach consensus, the SAU must provide
the parents with prior written notice of the schools proposals or refusals, or both, regarding their childs educational
program, and the parents have the right to seek resolution of any disagreements by initiating an impartial due process
hearing or a State complaint investigation.
MUSER IX.3.B.(3) provides in relevant part as follows:
Each school administrative unit shall implement a child with a disability's Individualized Education
Program as soon as possible following the IEP Meeting but no later than 30 days after the IEP Team's
initial identification of the child as a child with a disability

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During his observations of the Student in January and February, 2014, Dr. Kaufman observed Ms.
Mosca doing phonetic and word family work as well as guided oral reading with the Student.
[Kaufman testimony] Dr. Kaufman testified that while he had other recommendations to improve
the Students literacy instruction, he did not observe any instruction offered to the Student by the
District that was either inappropriate or significantly inconsistent with the types of reading practice
done for students who have reading disorders. [Kaufman testimony; S-516].
Dr. Kaufman noted that although the Lexia screen-based reading program requires an educational
technician or a resource teacher to pay close attention to the student while delivering the training, it
can be quite effective and powerful. [Kaufman testimony] Kim Mosca testified that she used the
Lexia program while working with the Student on a 1:1 basis. Accordingly, the record supports a
finding that a requisite level of supervision was provided to allow the Student to benefit from the
Lexia program.
Because there is no bright-line rule on the amount of benefit required of an appropriate IEP,
courts and hearing officers must use an approach requiring a student-by-student analysis that
carefully considers the students individual abilities. Ridgewood Bd. of Educ., 172 F.3d at 248
(decision-maker must analyze the type and amount of learning that a student is capable of when
determining whether meaningful benefit has been provided). Whether a program provides a
meaningful benefit however, must be individualized, based upon each students potential for
advancement. Polk v. Central Susquehanna Interm. Unit 16, 853 F.2d 171, 180 (3d Cir. 1988).
In the present case, it is undisputed that the Student has significant disabilities. The Students
triennial test results at the end of the Students second grade year noted cognitive scores in the
extremely low range, with scores on the Phonological Awareness and Early Written Language
tests in the below average range. [S-6S-9; S-11]. On October 31, 2013, the Students DRA level
for her ability to read with minimal support was determined to be at a level 8, while her
instructional level was determined to be at a level 10. [S-189] Based upon his 2014 evaluations and
observations, Dr. Kaufman noted that the Student has fairly substantial challenges across
373

intellectual, processing, academic, and self-regulatory domains and low general intelligence
substantial working memory difficulties and substantially limited oral reading skills as compared to
her age and grade... [Kaufman testimony; S-527, S-501].56
Despite the Students challenges, I find that the Student made demonstrable gains in her literacy
skills. On January 10, 2014, Ms. Mosca wrote an e-mail to the Parent, noting that the Student was
reading at a DRA level 13. [S-356] In an e-mail dated February 14, 2014, Ms. Mosca wrote to the
Parent stating that the Student was doing great with reading consonants, and has begun reading
DRA level 14 books, prompting a response from the Parent that she was glad that [the Student]
was making limited progress. [S-394; S-393] Beth Weller, the Students Speech and Language
Pathologist, testified that the Student had a beneficial year and made reasonable progress. [Weller
testimony] Dr. Jefferson observed the Student working on her specially designed literacy program
and testified that the Student was oriented to the instruction and demonstrated 80% accuracy in her
skills. She added that there appeared to be no loss of instructional time or the Students
engagement during the 70 minute session.
On March 12, 2014, Ms. Mosca noted that the Student was reading at a DRA level 14 and by May
2014, the Student achieved an instructional DRA level of 14 and an independent DRA level of 10.
[Mosca testimony; S-437] 57
Even if LiPS, SPIRE or some other methodology could have increased the Students gains,
the benefit conferred need not reach the highest attainable level or even the level needed to
maximize the childs potential. As the First Circuit stated in Lenn v. Portland Sch. Comm. 998
56

The Students challenges were observed within her private LiPS training sessions. On August 3, 2014, after
completing 40 private LiPS training sessions, her vowel sound recognition improved from 9 to 11 and consonant
sound recognition improved from 21 to 24, which Dr. Kaufman characterized as fairly limited and somewhat
disappointing. [Kaufman testimony]
57

The Parent incorrectly quotes an undated report prepared by Kathleen Coffin, the Students private LiPS instructor.
In the Parents closing brief, she asserts that Ms. Coffin wrote in her progress report that the Students participation in
the Districts program had left her, in May of third grade, unable to identify most phonemes when the letters were
combined into words, including two letter words. Ms. Coffins report, which provides only general information on the
Students skills and deficits, merely states that the Student had difficulty when the letters were combined into words.
She noted that the Student was able to correctly name and give the isolated sounds for most of the consonant sounds
and a few of the vowel sounds. [P- 584]

.
374

F.2d 1083, (1st Cir. 1993) the law does not promise perfect solutions to the vexing problems posed
by the existence of learning disabilities in children and adolescents. Id at 1086. The Individuals
with Disabilities Education Act (IDEA) sets more modest goals: it emphasizes an appropriate,
rather than ideal, education; it requires an adequate, rather than optimal, IEP. Appropriateness and
adequacy are terms of moderation. Id. at 1089.
In Roland M., the First Circuit described the goal as to provide the student with
demonstrable benefits. Roland M., 910 F.2d at 991. As the First Circuit explained:
The issue is not whether the IEP was prescient enough to achieve perfect academic results,
but whether it was "reasonably calculated" to provide an "appropriate education" as defined
in federal and state law . . . For one thing, actions of school systems cannot, as appellants
would have it, be judged exclusively in hindsight. An IEP is a snapshot, not a retrospective.
In striving for "appropriateness," an IEP must take into account what was, and was not
objectively reasonable when the snapshot was taken, that is, at the time the IEP was
promulgated. See 34 C.F.R. Pt. 300, App. C.
Id.
Despite the Districts procedural violation by not providing the SPIRE program as determined in the
October 31, 2013 IEP, I find that the District provided the Student with a FAPE. The literacy program
delivered was reasonably calculated to provide educational benefit for the Student. Taking the
Students abilities into account, I find that the Student achieved demonstrable improvement in her
literacy skills.
Accordingly, I find that the Parent, as the party seeking relief, did not meet her burden of
persuasion with regard to the claim that the Student was not provided with a FAPE during the
2013-2014 school year.
ii. Methodology.
The Parent argues that IDEA standards require that services provided to children with disabilities
be based on peer-reviewed research to the extent practicable, and that neither the program
provided or the proposed SPIRE program meet this standard, and thereby deprived the Student of a
FAPE. The Parent argues that it remains practicable for the District to use the Lindamood
Phoneme Sequencing Program (LiPS) with the Student, as recommended by Dr. Kaufman.
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The Parent correctly points out that in 2004, Congress added the following provision to the IDEA:
"[T]he term 'individualized education program' or 'IEP' means a written statement for each child
with a disability ... that includes ... a statement of the special education and related services and
supplementary aids and services, based on peer-reviewed research to the extent practicable, to be
provided to the child." 20 U.S.C. 1414(d)(1)(A)(i)(IV). This language was incorporated into the
revised IDEA regulations in 2006. 34 C.F.R. 300.320(a) Ridley School District v. M.R.; J.R.,
Parents of Minor Child E.R. v. Janet Cenname 680 F.3d 260 58 IDELR 271 112 LRP 25613 U.S.
Court of Appeals, Third Circuit 11-1447 May 17, 2012.
In Ridley, the parents of a child with a reading disability alleged that the district violated the IDEA
for offering a reading program known as Project Read which had not been thoroughly tested with
regard to its effectiveness for their childs unique combination of disabilities. Id. The parents
argued that the district should have provided the Wilson Reading System, a program already
proven to be effective for teaching students with learning disabilities similar to those of the student.
Id. The Ridley Court affirmed the District Courts finding that although Project Read may not have
had the same level of peer review and support, it had been shown to be helpful in improving the
reading skills of students with disabilities similar to the child in pending case. Ultimately, the Court
held:
Given that the IDEA does not require an IEP to provide the "optimal level of services," D.S., 602
F.3d at 557 (citations omitted), we likewise hold that the IDEA does not require a school district to
choose the program supported by the optimal level of peer-reviewed research. Rather, the peerreviewed specially designed instruction in an IEP must be "reasonably calculated to enable the
child to receive meaningful educational benefits in light of the student's intellectual potential."
Chambers, 587 F.3d at 182 (citation omitted) In selecting special education programs, a school
district must be able to take into account not only the needs of the disabled student, but also the
financial and administrative resources that different programs will require, and the needs of the
school's other non-disabled students. See J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 70 (2d Cir. 2000)
Ridley School District v. M.R.; J.R., Parents of Minor Child E.R. v. Janet Cenname 680 F.3d 260
58 IDELR 271 112 LRP 25613 U.S. Court of Appeals, Third Circuit 11-1447 May 17, 2012
The present case is factually similar to Ridley. Dr. Kaufman testified that although SPIRE has less
direct research support, its construction is based upon research done on its programmatic elements
and is a program that he believes is reasonably calculated to benefit the Student. Beth Weller, the
376

Students Speech/Language Pathologist, testified that SPIRE offers a comprehensive reading

program with phonological awareness concepts including vocabulary, comprehension, encoding,
spelling, phonemic and fluency. Based upon this credible testimony, I find that the programming
offered and delivered to the Student was based upon research and designed to provide educational
benefit to the Student.
With regard to the literacy program received by the Student during her 2013-2014 school year,
there was no evidence that the literacy programs provided by the District were not researched
based. Dr. Kaufman testified that he did not observe any instruction offered to the Student by the
District that was either inappropriate or significantly inconsistent with the types of reading practice
done for students who have reading disorders. [Kaufman testimony; S-516].
Educational methodology generally falls within the discretion of the school district unless the
method is distinctive or exclusive. Central Bucks School District 40 IDELR 106, 103 LRP 52413,
Pennsylvania State Educational Agency, November 13, 2003; see also, Medina Valley Independent
School District, Texas State Educational Agency, 106 LRP 29730 October 10, 2005; Brougham v.
Town of Yarmouth, 823 F. Supp. 9, 16 (d. Me. 1993), quoting Lachman v. Illinois State Board of
Education, 852 F.2d 290, 297 (7th Cir.), cert. denied, 109 S.Ct. 308 (1988). As noted by Dr.
Kaufman, there were several different literacy programs that could be viewed as appropriate for the
Student, including the SPIRE program.
Accordingly, although the literacy programs offered to the Student may not have been optimal, the
record does not support a finding that the District deprived the Student of a FAPE by offering her
the SPIRE or the modified literacy program provided during the 2013-2014 school year. See S.A.
v. Riverside DeLanco Sch. Dist., 2006 WL 827798 (D.N.J. March 30, 2006)
iii. Social and Behavioral Instruction.
The Parent also argues that the District failed to provide direct social skills instruction, and that
none of the IEPs provided for any direct specialized instruction in this area for the Student.

377

The term education has a broad meaning under the IDEA and is not limited merely to academic
growth. Mr. I. v. Maine Sch. Admin. Dist. No. 55, 480 F.3d 1, 12 (1st Cir. 2007); Accordingly, an
IEP must be designed to target all of a child's special needs, whether they be academic, physical,
emotional, or social. Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1089 (1st Cir. 1993), 20
U.S.C. 1415(d)(1)(A).
In the present case, the Students IEP team determined at the October 31, 2013 meeting that she
would receive 30 minutes per week of social skills activities and weekly participation in a lunchtime friendship group with her guidance counselor. [S-189; S-154-155] The Student participated
in a social skills program with her peers from 8:45 a.m. to 9:00 a.m. on Tuesdays and Thursdays,
however she occasionally missed these programs due to her late arrival at school. [P-234, 235;
Mosca testimony]
Once the Students behaviors towards her peers became a concern in April 2014,
the Students IEP Team met to discuss her behavior support plan and other aspects of the Students
programming. [S-177] At the May 1, 2014 meeting, the IEP team determined that a zones of
regulation behavior system would be used to address the Students behavior regulation issues,
along with the use of coins instead of tokens. [S-732] In addition, it was determined that the
District would contract with Dr. Jefferson for up to three visits, to observe and look at target
behaviors, behavioral programming[and] would seek to implement Dr. Jeffersons
recommendations. [S-177]
MUSER VI.2.J.(4) provides that one of the major IEP Team responsibilities is to develop and
revise an Individualized Education Program. (emphasis added). A school district is obligated,
within a reasonable period of time, to review and develop a programming alternative once it
becomes clear the student's IEP is not working. M.C. ex rel. JC v. Central Regional School
District, 81 F.3d 389, 396-97 (3d Cir.), cert. denied, 519 U.S. 866, 136 L. Ed. 2d 116, 117 S. Ct.
176 (1996).
I find that the District provided appropriate social skills programming for the Student in the least
378

restrictive environment, and appropriately responded to her behavior issues when they became
pronounced.
It is noteworthy that Dr. Jefferson explained during her testimony that the Students behavior issues
could be related to regularly missing her morning social group and removal from school to attend
private literacy training. In effect, Dr. Jefferson noted that these absences from school could cause
a form of deprivation with respect to her peer interaction that may have contributed to her negative
behaviors. [S-A-8] While the causes of the Students behavior are uncertain at this point, the
District should not be liable for a denial of FAPE to the extent that the omission may have been due
to Parent action.
See, Lessard v. Wilton-Lydenborough Cooperative Sch. Dist. 518 F.3d 18, (1st Cir. 2008); Roland
M. v. Concord Sch. Comm. 910 F.2.d 983, 992 (1st Cir. 1990), supra.
D. The District did not violate the Students rights under the IDEA by not providing a
Functional Behavior Assessment for the Student during the 2013-2014 academic year.
As noted above, the Students IEP Team met On May 1, 2014 to discuss the Students recent
behavior issues. At this meeting, the team determined that Dr. Jefferson would be retained for up
to three visits, to observe and look at target behaviors, behavioral programming [and that the
team] would seek to implement Dr. Jeffersons recommendations. [S-177] Following her review,
Dr. Jefferson concluded that it would not be appropriate to conduct an FBA at that time. [S-774] In
her testimony, Dr. Jefferson explained that a reliable FBA was based upon data gathered in a very
structured manner, including before and after behaviors and reinforcing behaviors. [Jefferson
Testimony]. She stated that, since there were only a small number of incidents, the data necessary
to perform an FBA would not be reliable. Instead, she prepared a behavior plan without conducting
an FBA, which she testified was a permissible practice with respect to programs in the
construction phase.

379

The Parent argues that the FBA responsibility is triggered under the IDEA requirement that a
student be assessed in all areas of suspected disability . . . . 20 U.S.C. 1414(b)(3)(B); 34 C.F.R.
300.304(c)(4); MUSER V.2.C.4.
The Parents argument on this point lacks merit. The Districts obligation to assess students does
not necessarily trigger a responsibility to conduct an FBA. While the regulations require that the
FBA process must include the parent, there are only limited circumstances where the MUSER
requires a school administrative unit to conduct and FBA, none of which are applicable here.58 I
find that Dr. Jeffersons testimony is credible that an FBA in the present case was not appropriate.
Additionally, I find that the District appropriately responded to the Students behaviors by
addressing the issue in the May 1, 2014 IEP meeting, retaining Dr. Jefferson and implementing her
recommendations.
E. If the Hearing Officer determines that the District failed to provide the Student with a
FAPE or violated the IDEA, what remedy is appropriate?
As the District provided the Student with FAPE and did not violate the IDEA, no remedy is
required.

ORDER
After consideration of the evidence presented during this due process hearing,
It is hereby ORDERED that:
1. The District provided the Student with a free, appropriate public education during
2013-2014 school year despite a procedural violation by not providing SPIRE
training to the Student;
2. The District did not violate the Students rights under the IDEA by refusing to
58

MUSER XVII F. requires a school administrative unit to conduct an FBA or review and modify an existing behavior
plan if the IEP team determines that a students conduct was a manifestation of the students disability.

380

provide a Functional Behavior Analysis during 2013-2014 school year;

3. The Parents claims for compensatory education damages from the commencement
of the 2013-2014 school year through December 17, 2013 are barred as a result of
the agreement reached between the parties and the Parents signing of a Hearing
Withdrawal Request form on December 17, 2013.

Dated: October 14, 2014

_______________________
David C. Webb, Esq.
Hearing Officer

381

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE
S.D., individually and as parent
and legal guardian of HV, a minor,
Plaintiff,
v.
PORTLAND PUBLIC SCHOOLS,
Defendant.

Case No. 2:13-cv-00152-JD

ORDER ON PLAINTIFFS APPEAL OF
THE ADMINISTRATIVE HEARING OFFICERS DECISION
This action is before the court on the complaint filed by the plaintiff, SD, who
requests that the court vacate an administrative hearing officers decision under the
administrative procedures of the Individuals with Disabilities in Education Act
(IDEA or the Act), 20 U.S.C. 1415(i)(2). For the reasons stated below, I find that
the administrative hearing officers decision should be AFFIRMED IN PART and
VACATED IN PART.
I. FACTUAL BACKGROUND
SD brings this appeal on behalf of her 14 year-old son, HV. Plaintiffs Brief, ECF
No. 22 at 1. In March 2008, HV was diagnosed with a variety of reading and
anxiety disorders which required a structured and systematic multi-modal reading
approach that focuses on phonics. Administrative Record at 2536. HVs diagnosing
psychologist, Sharon Etzweiler, Ph.D., recommended the Orton-Gillingham program
or the Wilson Reading Program (Wilson) to address HVs reading difficulties. Id.

382

Shortly after HVs diagnosis, the Portland Public Schools (Portland or the
School District) found HV to be eligible for IDEA services under the category of
specific learning disability and held an individualized education plan (IEP) team
meeting at which it was decided that HV would receive five hours per week of oneon-one (1:1) or one-on-two (1:2) instruction in reading and writing. ECF 22 at 2; R.
at 2537. Accordingly, HV received reading instruction in the Wilson program through
the end of his second grade year (2007-2008) and throughout his third grade (20082009) and fourth grade years (2009-2010) from Cynthia Johnson, a Wilson-certified
special education teacher. R. 2537-38. HV also received extended school year
tutoring in the Wilson program during the summer breaks between school years. Id.
A.

Fifth Grade (2010-2011)

In May 2010, HVs IEP team met for its annual review and drafted HVs fifth

grade IEP to require specially designed instruction 5 hours weekly to address

reading or writing to be conducted in a small group or individual setting. R. 1127.
The IEP team reconvened in November 2010 to address SDs concerns about
how HVs Wilson instruction was being administered. R. 679-688. Although the
Wilson program required 100% accuracy on a given level in order to progress to the
next level, Johnson admitted that she sometimes allowed HV to progress to the next
level if he exhibited 90% accuracy in order to keep him motivated. R. 2540-41. SD
objected to Johnsons approach, and asked that she administer the Wilson program
without skipping any steps, which Johnson agreed to do. Id. at 2541. Later the same
month, Jane Boulos, a Portland school psychologist, conducted HVs triennial

383

reevaluation and found that he had significant deficits in word reading, reading
fluency, and reading comprehension. ECF No. 22 at 5. The IEP team reconvened
again in January 2011 in order to hear Boulos present the results of her evaluation
and agreed that the IEP should continue to require 5 hours per week of special,
multi-sensory instruction in reading and spelling. R. 1045; R. 2544.
B.

Sixth Grade (2011-2012)

In June 2011, the IEP team met for its annual review and to plan HVs

transition from elementary to middle school. R. 2544; ECF No. 22 at 6. Johnson

reported to the team that HV was working on level 7 of the Wilson program, and that
he was doing quite well. Id. The team agreed that HVs sixth grade IEP should
require five 50-minute sessions per week of individual, multisensory instruction in
reading and writing; three 50-minute sessions per week of special education support
to help HV complete classroom assignments; and extended school year services
consisting of six hours per week for five weeks during the upcoming summer. R. 1034.
HV began attending the sixth grade at Lincoln Middle School (Lincoln) in
September 2011. ECF No. 22 at 6. Almost immediately, a scheduling conflict arose
between HVs participation in band and his 50-minute 1:1 reading instruction, which
SD and school officials resolved by reducing the reading instruction to one 50-minute
session every other day. R. 275-278; R. 2546. They agreed to reevaluate HVs reading
progress in four to six weeks to ensure that the reduced amount of 1:1 instruction was
not affecting his reading progress. Id. At approximately the same time, HVs new
Wilson-certified instructor, Maryanne Scally, reviewed HVs files and decided to re-

384

test him in the Wilson program, identifying what she characterized as some holes in
his knowledge which caused her to return HV to Wilson level 2. R. 2546-47. SD
testified that she only learned of this setback a couple of months into the school year
and that she learned of it from HV rather than from a teacher or other school official.1
R. 2630.
After meeting with HVs teachers in late October 2011, SD decided to have HV
drop band and take private music lessons in order to allow him to devote more time
to his 1:1 reading instruction. R. 2547. Yet rather than return to five 50-minute
sessions per week, the school scheduled HV for four 50-minute sessions per week. Id.
Through the end of 2011 and into January 2012, HV experienced a number of
bullying incidents which caused him to suffer increased school-related anxiety. ECF
No. 22 at 7. For example, in December, some students pinned HVs arms behind his
back and verbally taunted him; in January, another student punched HV in the face.
Id.; R. 2548. As HV was subject to further bullying, he began to react with explosive
anger. ECF No. 22 at 7. Following the punching incident, SD decided to keep HV
out of school until she was assured by the school administration that he would be
safe. R. 2549. HV missed a total of three days of school before returning to classes.
R. 2550. Following his return, SD chose to have Scally spend her 1:1 instructional
time helping HV catch up on work that he missed while he was out of school, rather
than teach the Wilson program. R. 2550; Defendants Brief, ECF No. 25 at 20. On
Scally testified that the first time she spoke with SD regarding HVs drop from Wilson level 7 to level
2 was in January 2012. R. 2810. Scally further testified that SD did not seem surprised and that
[t]here was nothing about that meeting that gave me any cause for concern or if [SD] wouldnt have
been happy, she didnt express it in that meeting. Id.
1

385

February 6, 2012, HVs English teacher, Ms. Hood, emailed SD regarding her
concerns about HVs return to school. R. 2550. She wrote that she had observed
changes in HVs behavior, including lots of fidgeting, refusing to open the book from
which the class was reading, being generally unfocused, and making loud comments
while the teacher was talking. Id. In his therapy sessions, HV stated that he felt like
he was being blamed for his problems in school. R. 2551.
By March 2012, SD was very upset and concerned about the decline in HVs
behavior at school as well as his lack of academic progress. R. 2553. On March 6,
she met to discuss HVs situation with Steven Nolan, the principal of Lincoln Middle
School; Suellyn Santiago, the schools Assistant Principal; Deb Mullis, HVs case
manager; and Jayne Boulos, the school psychologist. Id. At the meeting, SD
expressed her opinion that nothing the school was doing was working, noting in
particular that Maryanne Scally was not helping HV, that he was not benefiting from
the Wilson program, and that she did not want Scally working with HV anymore. Id.;
R. 2870-73. She also insisted on removing HV from his English and Social Studies
classes because she felt that those teachers, Gail Hood and Nancy Chard, were not
meeting HVs learning style. R. 2685-86; R. 2872. SD threatened to pull HV out of
Lincoln altogether unless she saw some changes. R. 2872. The only other Wilson
instructor available at Lincoln was not certified, and therefore SD refused to have
that instructor work with HV. R. 2871. Deb Mullis suggested switching HVs reading
instruction from the Wilson program to a different program called System 44, a
reading program similar to the Wilson program except that it was not multi-sensory.

386

R. 2696. Although she was somewhat skeptical, SD agreed to have HV try System 44
under the condition that he receive 1:1 instruction and because it would mean that he
would no longer be working with Ms. Scally. R. 2696; R. 2554. Thus, after four years
of 1:1 or small group instruction, HV ended the 12-level Wilson program in March
2012 at only level 2. ECF No. 22 at 9.
At the end of March 2012, HV began System 44. R. 2557. Initially, SD wasnt
thrilled with the environment because HV had problems with the computer system
and reported that his teacher, Ms. Krasowski, became angry with him, but by early
April HV told his mother that school was going well and that he was learning again.
Id. Nevertheless, on April 12, SD emailed Jayne Boulos to say that System 44 was a
waste. R. 1508. Either the computer doesnt work, the teacher is out sick, the
library door is locked, and on and on. Id.
In late April 2012, SD hired Christopher Kaufman, Ph.D., a licensed
psychologist and certified school psychologist, to perform an initial consultation and
diagnostic interview of HV, as well as to review HVs previous testing and to attend
IEP meetings on May 16 and 30. R. 2558. Kaufman observed that HV had difficulty
holding onto the progress he had made in his reading instruction, and assumed that
his problems were with working memory or long-term memory. Id. Kaufman felt
that it was very unusual for a student to regress in the Wilson program from level 7 to
level 2.5, and assumed that this was due to HVs memory problems.2 R. 2594. He
I note that there is a minor discrepancy between the testimony of Maryanne Scally, who testified
that HV was at Wilson level 2 at the beginning of the sixth grade, see R. 2808, and Christopher
2

387

Kaufman, who testified that HV was at level 2 or 2.5. R. 2594. This discrepancy is not significant
enough to affect my analysis, however.

did not attribute HVs poor performance to a failure of the IEP or to Cynthia
Johnsons instruction. Id.
At the May 16 IEP team meeting, Kaufman recommended that HV continue to
work in a multisensory systematic reading program. Id. Notwithstanding the fact
that System 44 was not multisensory, the IEP team unanimously agreed to continue
the System 44 program with 1:1 instruction. R. 2559. Kaufman later agreed in
testimony

before

the

administrative

hearing

officer

that

the

IEP

teams

determination was reasonable based upon the information they had at the time. Id.
C.

Seventh Grade (2012-2013)

Two weeks later, on May 30, the IEP team reconvened for its annual review

and to draft HVs IEP for the seventh grade. Id. The team agreed that the special
education services for HV in the upcoming academic year would include support in
various subject matters for 50 minutes per day each and a continued focus on System
44. R. 2559-60. The team also agreed to change HVs System 44 instructor at SDs
request. R. 2559.
SD subsequently drafted a letter on August 21, 2012, notifying the School
District that she was enrolling HV in the Aucocisco School (Aucocisco), a private
school that focuses on students with learning disabilities, for the seventh grade and
that she intended to seek reimbursement for the $29,900 tuition she paid, plus
associated costs. R. 2561.
388

At a resolution session held on October 30, 2012, the School District offered SD
another opportunity to choose from one of the three middle schools in Portland. R.

2564. Portland also offered an amended IEP that included one 30-minute session of
social work per week and one 30-minute session of social skills training per week,
plus the previous special educational services offered for the seventh grade. Id. SD
rejected this offer in favor of keeping HV at Aucocisco. Id.
The parties participated in a special education due process hearing pursuant to
20 U.S.C. 1415 et. seq. and 20-A M.R.S. 7207-B, over four days in December
2012. In a decision dated January 22, 2013, Hearing Officer Shari Broder, Esq. (the
hearing officer), determined that HV had received a free, appropriate public
education during his fifth grade year (2010-2011); that Portland denied HV a free,
appropriate public education in the sixth grade (2011-2012) only to the extent that he
received four days per week of 1:1 reading instruction rather than the required five
days per week; and that Portlands IEP and placement offer for HVs seventh grade
year (2012-2013) was an appropriate plan for educating HV. R. 2581. The hearing
officer ordered Portland to pay for the cost of HVs attendance for six weeks at the
Aucocisco summer academic intensive program for three hours per day, plus the costs of
two hours per day of literacy tutoring for two weeks at a rate not to exceed $50.00 per
hour, plus transportation costs. Id.
SD filed the instant appeal on April 19, 2013. ECF No. 1.
II. LEGAL STANDARD
389

A.

IDEA
The IDEA is a comprehensive statutory scheme which Congress enacted to

ensure that all children with disabilities are accorded a free appropriate public
education, and that both their rights and those of their parents are protected. 20
U.S.C. 1400(d)(1)(A)-(B); Frazier v. Fairhaven School Committee, 276 F.3d 52, 58
(1st Cir. 2002).
As a condition for receiving federal funds, states are required to provide a free,
appropriate public education to all disabled children. Lessard v. Wilton Lyndeborough
Coop. School Dist., 518 F.3d 18, 23 (1st Cir. 2008). In order to provide a free,
appropriate public education, a school must create and then follow an individualized
education program (IEP) for each disabled child. D.B. ex rel. Elizabeth B. v.
Esposito, 675 F.3d 26, 34 (1st Cir. 2012). The IEP is a written statement for each
child with a disability that is developed, reviewed, and revised in accordance with the
IDEA and which must include the following: a statement of the childs present levels
of academic achievement and functional performance; a statement of measureable
annual goals; criteria for measuring progress toward those goals; and a statement of
the specific services that the school will offer. 20 U.S.C.A.
1414(d)(1)(A).
The Act imposes additional procedural and substantive requirements with
regard to the IEP. See Roland M. v. Concord School Commn, 910 F.2d 983, 987 (1st
Cir. 1990). For example, parents have the right to be part of the IEP team along
with the teachers and other educational professionals charged with formulating a
childs particular IEP. 20 U.S.C.A. 1414(d)(1)(B); Lessard, 518 F.3d at 23. The
390

purpose behind such procedural safeguards is to guarantee parents both an

opportunity for meaningful input into all decisions affecting their childs education
and the right to seek review of any decisions they think inappropriate. Pihl v.
Massachusetts Dept. of Educ., 9 F.3d 184, 187 (1st Cir. 1993) (quotation omitted).
Thus, in the event of a dispute between the school and the childs parents regarding
the IEP, the parents have the right to demand a hearing by an impartial hearing

officer. 20 U.S.C.A. 1415(f)(1)(A), (B)(ii). A party dissatisfied with a hearing officers

decision may appeal to a state court or a federal district court, which must (i) receive
the records of the administrative proceedings; (ii) hear additional evidence at the
request of a party; and (iii) grant relief as it deems appropriate based upon the
preponderance of the evidence. 20 U.S.C.A. 1415(i)(2)(A), (2)(C).
A courts authority to grant relief under the Act includes the power to order
school authorities to reimburse parents for their expenditures on private school
education for a child if the court ultimately determines that such placement, rather
than a proposed IEP, is proper under the Act. Pihl, 9 F.3d at 188 (quoting School
Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 369
(1985)).
B.

STANDARD AND SCOPE OF REVIEW

The district court reviews the hearing officers decision based on a

preponderance of the evidence standard. 1415(i)(2)(C), supra; D.B., 675 F.3d at 35-

391

36. The burden of proof rests on the party challenging the hearing officers decision.
Hampton School District v. Dobrowolski, 976 F.2d 48, 54 (1st Cir. 1992). [T]he
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. Board of
Educ. of Hendrick Hudson Central School Dist., et. al. v. Rowley, 458 U.S. 176, 206
(1982). The requirement that a reviewing court must receive the records of the
administrative proceedings implies that due weight shall be given to those
proceedings. Rowley at 206 (quotation omitted). Judges are not trained

pedagogues, and they must accord deference to the state agencys application of
specialized knowledge. Lessard, 518 F.3d at 24 (citing Gonzalez v. P.R. Dept. of
Educ., 254 F.3d 350, 352 (1st Cir. 2001)) (other citations omitted). Therefore, judicial
review falls somewhere between the highly deferential clear-error standard and the
non-deferential de novo standard. Id. (citing Roland M., 910 F.2d at 989).
C.

ADEQUACY AND APPROPRIATENESS OF THE IEP

An IDEA appeal presents two questions: the first is whether a particular school

district complied with the procedures set forth in the Act, and the second is whether
the IEP developed through the Acts procedures was reasonably calculated to enable
the child to receive meaningful educational benefits. Rowley, 458 U.S. at 206-07;
D.B., 675 F.3d at 34-35. In this case, there does not appear to be any dispute over
Portlands compliance with the IDEAs procedural requirements. Therefore, my

392

analysis will focus on SDs substantive objection to the IEPs developed for HV in his
fifth, sixth, and seventh grade years.
In Town of Burlington v. Department of Educ. for Com. of Mass., 736 F.2d 773,
788 (1st Cir. 1984), the First Circuit identified certain basic guidelines for
determining the adequacy of an IEP, among these being the achievement of effective
results and demonstrable improvement in the educational and personal skills
identified as special needs. The First Circuit subsequently clarified in Roland M.
that while actual education results are relevant to determining the efficacy of
educators policy choices, parties nevertheless should not confuse what is relevant
with what is dispositive. 910 F.2d at 991 (emphasis in original). Although [a]ctual
educational progress can (and sometimes will) demonstrate that an IEP provides a
[free, appropriate public education] . . . impos[ing] the inverse of this rulethat a lack

of progress necessarily betokens an IEPs inadequacywould contradict the

fundamental concept that an IEP is a snapshot, not a retrospective. Lessard, 518
F.3d at 29 (quoting Roland M., 910 F.2d at 992). The issue is not whether the IEP
was prescient enough to achieve perfect academic results, but whether it was
reasonably calculated to provide an appropriate education as defined in federal and
state law. Roland M. at 992.
In addition to developing an IEP that is reasonably calculated to provide
meaningful educational benefits, D.B. at 34-35, a school district is required to

393

implement the IEP in accordance with its requirements. Doe ex rel. Doe v. HampdenWilbraham Regional School Dist., 715 F.Supp.2d 185, 195 (D. Mass. 2010) (citing 20
U.S.C. 1401(9)(D)). Although perfect implementation is not necessarily required,
courts have found that the failure to implement a material or significant portion of
the IEP can amount to a denial of [a free, appropriate public education]. Sumter
County School Dist. 17 v. Heffernan ex rel. TH, 642 F.3d 478, 484 (4th Cir. 2011). See
also Van Duyn ex rel. Van Duyn v. Baker School Dist. 5J, 502 F.3d 811, 822 (9th Cir.
2007) (a material failure to implement an IEP violates IDEA.).
D.

REMEDIES
Under the IDEA, the court has the power to grant such relief as [it]

determines is appropriate. 20 U.S.C. 1415(i)(2)(C)(iii). [B]y empowering the court

to grant appropriate relief Congress meant to include retroactive reimbursement to
parents as an available remedy in a proper case. Burlington, 471 U.S. at 370; see
also Rafferty v. Cranston Public School Committee, 315 F.3d 21, 26 (2002).
Reimbursement is not damages, but rather payment of expenses that [the school]

should have paid all along and would have borne in the first instance had it developed a
proper IEP. Id. at 37071. [C]ompensatory education is not an automatic
entitlement but, rather, a discretionary remedy for nonfeasance or misfeasance in
connection with a school systems obligations under the IDEA. C.G. v. Five Town
Cmty. Sch. Dist., 513 F.3d 279, 290 (1st Cir. 2008). A school districts responsibility
for compensatory educational services does not depend on the vigilance of the parents,
394

see, e.g., Maine Sch. Admin. Dist. No. 35 v. Mr. R., 321 F.3d 9, 20 (1st Cir. 2003) (called
into doubt on other grounds by Boston Childrens First v. City of Boston, 395 F.3d 10,
15 (1st Cir. 2005)). Nor does it depend on a finding that the school district acted in
bad faith or egregiously, see, e.g., M.C. ex rel. J.C. v. Central Regl Sch. Dist., 81 F.3d
389, 397 (3d Cir. 1996). Rather, a student who fails to receive appropriate services
during any time in which he is entitled to them may be awarded compensation in the
form of additional services at a later time. Pihl, 9 F.3d at 187.

III. ANALYSIS
A.

Fifth Grade (2010-2011)

The hearing officer concluded that HVs fifth grade IEP was appropriately

drafted and that it contained the essential elements of personalized instruction in

the areas of need, support services, present levels of performance, measurable annual
goals, methods by which progress towards those goals [could] be measured, and an
explanation of the extent to which [HV] would participate with non-disabled
students. R. 2571. The hearing officer also found that HV had benefitted from the
IEP. R. 2572. Although she recognized that HV was not progressing as fast as his
non-learning disabled peers, she nevertheless concluded that this was an

understandable reflection of his complicated disability, explaining that, [i]t is

therefore no surprise that [HV] had difficulty making greater progress than he made.
Id. She concluded that HV had received a meaningful educational benefit for his
fifth grade year. Id.
395

SD challenges the hearing officers conclusion and highlights three points of

contention. First, SD argues that Portlands singular reliance on the Wilson Reading
Program

to

remediate

HVs

significant

and

complex

literacy

deficits

was

inappropriate because HVs evaluation results demonstrated that he had problems

both with phonics and with visual memory, making Wilson an inappropriate choice
for him at the outset. ECF No. 22 at 18 (emphasis in original). SD claims that
Wilson was an off-the-rack programming selection which violated the IDEAs
requirement that programming be tailored to meet the unique special needs of
students. Id. at 19 (emphasis in original).
Secondly, SD argues that the hearing officer did not address Portlands alleged
failure to include programming or supports to manage HVs anxiety, and claims that
this omission violated the IDEAs requirement that schools address both academic
achievement and functional performance. Id. at 19.
Finally, SD argues that Portland failed to properly implement HVs fifth grade
IEP because Cynthia Johnson admitted to allowing HV to progress in the Wilson
program whenever he achieved 90% proficiency on a given level, instead of requiring
him to meet 100% proficiency. Id. at 20-21.
The hearing officer adequately addressed each of SDs arguments in her ruling,
citing evidence in the record to support her conclusions. With regard to the

396

appropriateness of the Wilson program, she noted that [t]here was no dispute among
the various experts . . . including Dr. Kaufman, Dr. Etzweiler, and Ms. Boulos, that
Wilson was an appropriate reading program for [HVs] needs. R. 2571.
Insofar as HVs school-related anxiety was a problem in the fifth grade, the hearing
officer noted that [t]he assistant principal and other school officials dealt with [HVs]
problems interacting with a few of his peers, and [SD] enthusiastically thanked Mr.
Turner for his work. [HVs] peer problems did not appear to interfere with his
learning. R. 2573. Finally, with regard to Cynthia Johnsons practice of advancing
HV to the next Wilson level upon meeting 90% proficiency instead of 100%
proficiency, the hearing officer noted that Ms. Boulos observed Ms. Johnson working
with [HV] and did not report seeing anything wrong with her teaching methods, and
[t]here was no evidence that Ms. Johnsons approach to delivering [HVs] program
amounted to a deprivation of [a free, appropriate public education]. R. 2572.
Furthermore, the hearing officer cited Dr. Kaufmans testimony that although [he]
acknowledged that [HV] had difficulty holding onto the progress he made . . .
[Kaufman] did not know what to attribute this to, other than [HVs] working memory
and long-term memory problems. Id.
In short, the hearing officers resolution of these issues is supported by the
evidence. SDs objections, although understandable from the point of view of a
concerned parent, are precisely the sort of invitation to substitute the courts own
notions of sound educational policy in place of the school administrators, which the
Rowley court explicitly warned against. See Rowley, 468 U.S. at 206. Accordingly, the
hearing officers ruling with regard to HVs fifth grade year is AFFIRMED.
397

B.

Sixth Grade (2011-2012)

In her analysis of HVs sixth grade year (2011-2012), the hearing officer

focused on the problematic implementation of the IEP, noting that, while the IEP
appeared to contain the essential elements required by law, HV did not work well
with his Wilson program instructor, Ms. Scally, and made only minimal progress in
reading during the sixth grade. R. 2573.
The hearing officer attributed the poor implementation of the IEP both to
Portland and to SD. Apportioning some of the blame to Portland, she found fault
with the School Districts unilateral decision to reduce HVs 1:1 reading instruction
time to four 50-minute sessions per week, instead of the five sessions per week which
were required by the IEP. R. 2547; 2575. She concluded that this was certainly a
factor in [HVs] slow progress in the sixth grade and constituted a deprivation of a
free, appropriate public education. R. 2575.
The hearing officer apportioned a greater amount of blame for HVs lack of
progress to SD, citing her demanding, blaming, and insistent attitude. R. 2574.
She concluded, for example, that SD obstructed delivery of services under the IEP
by choos[ing] to have [HV] receive half of the Wilson instruction called for in the IEP
rather than drop band at the beginning of the academic year. R. 2574. She also
cited SDs decision in January 2012 to have HVs teacher stop work on the Wilson
reading curriculum in favor of working with HV on missed schoolwork. Id. She found
that SDs insistence on 1:1 instruction for HV in the Wilson and System 44 programs
398

delayed HV from starting and benefitting from System 44. Id. She criticized SD
for dismissing the System 44 program as a waste of time; found that SD pulled HV

out of many classes because she did not like his teachers; and noted that SD refused to
deal with HVs guidance counselor after the counselor suggested that HV was
responsible for some of his problems with his peers. Id. at 2574-75.
The hearing officers remedy reflected her conclusion that SD shouldered more
blame than the School District. She ruled that HV was entitled to reasonable
compensation from the School District for receiving only four days of individualized
instruction per week instead of five. R. 2580. However, she limited the compensation
award because [m]uch of [HVs] lack of progress was due to [SDs] decisions, and it
does not seem fair to penalize Portland for its many efforts to try to appease [SD] by
changing [HVs] program at her request. . . . See R. 2580.
I disagree with the hearing officers conclusion in two key regards. First, the
hearing officer overstated SDs culpability for the ineffective implementation of HVs
sixth grade IEP. Secondly, the School Districts failure to provide a free, appropriate
public education was a result of an inappropriately-drafted IEP, and thus extends
beyond its failure to provide individualized reading instruction for a full five days per
week. I discuss each issue in more detail below.
1. The Hearing Officer Overstated SDs Culpability
In characterizing SD as having chosen for HV to receive half of his allotted
Wilson instruction rather than drop band, the hearing officer unfairly glossed over
399

Portlands inability to accommodate HVs reading instruction at any time other than
his scheduled band class, thereby apportioning all the blame to SD. Although the
final decision may have been SDs, it was Portland that presented her with the two
unsatisfactory options of either reducing HVs reading instruction or having him drop a

class in which he enjoyed rare scholastic success. See ECF No. 22 at 6-7. Thus, the
record does not support the bald conclusion that SD unilaterally chose to reduce
HVs reading instruction by half.
Furthermore, SDs decision to allow HV to continue participating in band is
reasonable when one considers the fact that she believed HV to be reading at Wilson
level 7, and was unaware that Ms. Scally had determined that HV had some holes
in his knowledge which were significant enough to drop him to level 2. R. 2546-47.
The fact that SD did not learn about this setback from Ms. Scally or another school
official when it happened, but instead learned about it a couple of months into the
school year from HV himself, R. 2630, makes SDs decision to allow HV to continue in
band until late October more understandable, and casts SDs subsequent aggressive
advocacy in a more reasonable light.
The hearing officer also blamed SD for her insistence on 1:1 instruction in the
Wilson and System 44 programs after the March 6 IEP meeting, even though this
delayed [HV] from being in and benefitting from the System 44 program. R. 2574.
However, this conclusion fails to recognize that HVs sixth grade IEP explicitly stated
that [HV] requires individualized, specially designed instruction to make progress
400

on his IEP. R. 1027 (emphasis added). Thus, SD was demanding nothing that
Portland was not already required to provide. The same is true regarding the
criticism of SD for deciding that System 44 was a waste of time. R. 2575. The
hearing officer noted that all of SDs complaints about how the program was
administered ([either] the computer doesnt work, the teacher is out sick, the library
door is locked, and on and on) were problems that did not exist when [HV] had

System 44 delivered in the group with Ms. Galli, which was the way the program
would have been delivered, had [SD] not insisted it be done her way. Id. at n.14
(citing R. 499). Again, this conclusion fails to acknowledge the fact that HVs sixth
grade IEP required individualized instruction, that SD had a good reason for raising
this issue, and that she was not simply insisting on having things her way. See R.
1027, supra.
Finally, the hearing officers conclusion that SDs decisions . . . were certainly a
significant factor in [HVs] lack of progress during the months of September,
October, February, and March, R. 2575, overstates what the weight of the evidence
shows, insofar as some of SDs decisions, as discussed supra, were either not
detrimental (insisting upon the 1:1 instruction that was already called for in the IEP),
not as significant as the hearing officer suggested (referring to System 44 as a waste of
time), or not properly characterized solely as SDs decision (choosing between
reducing reading instruction or dropping music education).
2. Portland Failed to Provide a Free, Appropriate Public Education
401

In addition to providing HV with only four of the requisite five 50-minute

sessions of Wilson instruction per week called for by his IEP, additional facts in the
record lead me to conclude that Portland shoulders a greater degree of responsibility
for HVs lack of progress in the sixth grade than the hearing officer apportioned.
HVs sixth grade IEP was drafted with the understanding that he was reading
at Wilson level 7, when in fact he was reading at Wilson level 2. R. 2544. Yet Portland
failed to investigate the cause for HVs decline after the beginning of the 2011-2012
academic year, when Maryanne Scally determined that HV was reading only at level 2

in the Wilson program. The evidentiary record shows that Ms. Scally told Deb
Mullis about HVs precipitous drop in Wilson levels shortly after she discovered it,
and duly reported that I was going to work in level 2 and everyone seemed to be in
agreement that that was fine. R. 2808. Without such an investigation, Portland was
operating in the dark and did not know whether HVs decline was the result of a
failure by Cynthia Johnson, HVs fifth grade reading instructor, to follow the Wilson
program; the result of HVs increased anxiety and maladaptive coping mechanisms;
the result of his memory retention deficit; or the result of faulty administration of
Wilson tests in arriving at a determination of his proficiency. Because HVs IEP was
formulated with the assumption that he was reading at Wilson level 7, the discovery
that he was actually reading at level 2 should have triggered a reevaluation of HVs
sixth grade IEP. The fact that this did not happen leads me to conclude that the IEP
was not properly implemented almost from the beginning of the academic year, and
402

the failure to reconsider it in a timely manner resulted in the denial of a free,

appropriate public education. See Springfield School Committee v. Doe, 623
F.Supp.2d 150, 161 (D. Mass. 2009) (failure to reevaluate IEP constituted denial of a
free, appropriate public education). See also Sumter County School Dist. 17, 642 F.3d at
484. See also Doe ex rel. Doe, 715 F.Supp.2d at 195.
Accordingly, the hearing officers determination that Portland provided HV
with a free, appropriate public education during his sixth grade year (2011-2012) is
VACATED. I address the proper remedy for this denial of a free, appropriate public
education, infra.

C.

Seventh Grade IEP (2012-2013)

The hearing officer concluded that HV could have received the programming

necessary to provide him with a free, appropriate public education in the seventh
grade, citing Dr. Kaufmans testimony that he could not say that Portland had fallen
short on its programming obligations. R. 2576 (citing R. 2609). She also cited
Kaufmans testimony regarding System 44, which was the proposed focus of HVs
seventh grade reading instruction. Kaufman described System 44 as a reasonable
program for HV despite the fact that it was not multisensory: many of us in this
business recommend multisensory, synthetic, systematic phonics programs because
they are so successful for so many kids but System 44 . . . can be very successful too
in [its] own way[]. . . . R. 2607.
403

SD argues that the hearing officers conclusion should be reversed as

indefensible because the seventh grade IEP would have provided HV with only a
small-group regular education class using the System 44 program and its deemphasis on individualized services. ECF No. 22 at 32. SD also asserts that the
hearing officers description of System 44 as an evidence-based, highly structured
reading program with a high degree of consistency is misplaced. Id.
I conclude that the hearing officers ruling with regard to HVs proposed
seventh grade IEP is supported by the evidence, as she relies upon Dr. Kaufmans
testimony to support her conclusions about System 44 and its appropriateness for
HV. SDs assertions about the program, while no doubt sincerely held, simply do not
have the same support in the record. Accordingly, I conclude that Portlands proposed
IEP and placement offer for HVs seventh grade year (2012-2013) was an appropriate

plan for educating HV. The hearing officers decision on this point is therefore
AFFIRMED.
D.

Remedy
As stated above, under the IDEA, the court has the power to grant such relief

as [it] determines is appropriate. 20 U.S.C. 1415(i)(2)(C)(iii). Among these

remedies is compensatory education, or the retroactive reimbursement to parents
for their expenditures on private school education for a child. Pihl, 9 F.3d at 188.
Such reimbursement represents a payment of expenses that the school would have

404

borne in the first instance had it developed a proper IEP. Burlington, 471 U.S. at
370-71.
Because I vacate the hearing officers decision with regard to HVs sixth grade
year (2011-2012) and conclude that HV was denied a free, appropriate public
education, I also conclude that SD is entitled to an award of compensatory education
for the expenses she incurred in enrolling HV in the Aucocisco School during the
2012-2013 academic year, minus the amount the hearing officer already awarded for
HVs attendance at Aucociscos six-week summer program and for the two-week
literacy tutoring and transportation costs. R. 2581 at 3.
IV. CONCLUSION
The parties shall confer and determine whether they can stipulate to the
amount of the award necessary to conform with the remedy stated above. If the
amount is stipulated to, the parties shall file a joint memorandum advising the court
of the award amount (i.e., the cost of HVs tuition at the Aucocisco School for the 20122013 academic year, minus the amount the hearing officer previously awarded),
within 14 days of the date of this order. If the parties cannot agree, each shall file a
memorandum, which shall not exceed five pages, setting forth their positions within
14 days of this order.
Additionally, the parties shall file memoranda and any accompanying
affidavits addressing the potential award of attorneys fees and costs. SD shall file
her memorandum and accompanying affidavits within 14 days of the date of this
order. Portlands response and SDs reply, if any, shall be filed thereafter in
conformance with Local Rule 7.
405

SO ORDERED.
DATED THIS 19th DAY OF SEPTEMBER, 2014

/s/ JON D. LEVY

UNITED STATES DISTRICT JUDGE

406

Hearing #15.008H
STATE OF MAINE
SPECIAL EDUCATION DUE PROCESS HEARING
PARENT
v.
RSU No. 73
ORDER ON MOTION FOR STAY PUT
On August 28, 2014, the Parent filed a motion requesting that the Hearing Officer determine
that the Students stay put placement was the placement contained in the Students IEP dated March
6, 2014, and not the 10 hours per week of tutoring that the Student has been receiving since his
suspension on March 4, 2014. The Parents motion contained a legal memorandum, a six- page
affidavit of the Parent, and 22 exhibits. The District filed a response opposing the motion on
September 3, 2014. On September 5, 2014, the Parent emailed a reply memorandum to the
Hearing Officer.
The Parent alleges that the March 6, 2014 IEP is the last agreed upon IEP, and is thus the
stay put placement during the pendency of these proceedings. This IEP provides that the Student
shall spend 100% of the time in mainstream classes, and will receive 20 minutes of special
education consultation per quarter. Affidavit Exh. D. The Parent further argues that significant
procedural violations in the IEP process should invalidate any change of placement contained in
later IEPs, and there was no agreement to change the placement. Any agreement by the Parent for
tutoring services, she argues, was only as a temporary placement.
The District counters that at the March 17, 2014 IEP team meeting attended by the Parent,
the Students placement was changed by agreement to tutoring services for up to ten hours per
week. The District contends that this placement was continued at three subsequent IEP team

407

meetings. As it was the placement at the time the Parent filed this hearing request, it is the stay put
placement under the IDEA and Maine Unified Special Education Regulations (MUSER).

BACKGROUND
The Student is 17 years old and is eligible for special education and related services as a
student with an emotional disturbance. During his sophomore year at Spruce Mountain High School
in RSU No. 73, the Student was involved in two behavioral incidents, each of which resulted in his
suspension from school for ten days. [Aff. Exh. E] Following the first incident, the IEP team met to
review a risk assessment conducted by a psychologist, which stated that the Student could safely be
readmitted to school, and highly recommended that the Student be engaged in counseling to work on
coping skills and social skills. [Aff. Exh. A] A safety plan was put into place for when the Student
became upset. The second incident, which occurred on March 4, 2014, was described as the Student
making, "inappropriate and threatening comments." [Aff. Exh. E] As the Student's behavior
escalated, a staff person apparently told him59 "Because you just growled I have to call your Mom
and have her pick you up." [Aff. Exh. N] The Student responded with statements, including, "If you
call, it will piss me off," and "If you call, everyone is in danger." [Aff. Exh. N] He was suspended
for 10 days, and as a condition of returning to school, he was to meet with the Superintendent, Dr.
Wall. [Aff. Exh. E] The Parent picked up the Student that day and took him to St. Mary's Hospital.
On March 17, 2014, the IEP Team met to review the Student's manifestation
determination, and determined that the Student's behavior was not a manifestation of his disability.
[Aff. Exh. F] The Written Notice following this meeting said, "Parent had no questions and agreed
with determinations." [Aff. Exh. F] The written notice also stated the following:

59

The incident is reported in an unsigned statement by someone who was in the classroom to observe a student, and

408

[The Parent] stated that after they left school on the day of the suspension, they did go to the
doctor's as well as 10 hours at St. Mary's. St. Mary's recommended in-patient hospitalization.
However, there were no beds available, and [the Student] is currently on a waiting list. St. Mary's
did ask him to take Resperdal to help him during this time. [The
Student] did agree to take it.60
the suspension. She also stated that she feels [the Student] gets emotional over a female at school a
[The Student] stated to [the Parent] that on the day of his suspension, he was feeling homicidal
towards the people that caused him nd that this might have led to his emotional outbreak. [The
Parent] also stated that she is trying to meet with the superintendent as he would like to meet with
her and [the Student] before [the Student] returns to school.
Tutoring was discussed and agreed upon that [the Student] will be tutored until he returns to
school. The parent hopes that [the Student] will return on Wednesday. [Aff. Exh. F]
Although the Parent stated in her Affidavit that she disagreed with the determination that
the Student's behavior was not a manifestation of his disability, this is contrary to the contents of
the Written Notice, and there is no documentation that the Parent informed the District of any
disagreement. There was also no indication that the Parent disagreed with the change inthe
Student's placement to tutoring, although it was apparent that she wanted the Student to return to
school as soon as possible.
Before allowing the Student to return to school, the District wanted some evidence from a
qualified medical professional that he was not a danger to himself or others. The Parent understood
this, but was unable to produce any documentation. In a letter dated March 24, 2014, she expressed
her unhappiness about the situation, particularly as the Student had not returned to school. [Aff.
Exh. H]
There was an 1EP team meeting held on April 7, 2014, and the Written Notice stated that
the Student would continue to receive tutoring, and that he "is a safety concern to the school. He
will continue with tutoring as he works on getting help from Sweetser/Kennebec Valley
Behavioral." [Aff. Exh. I] The team was to reconvene in 30 days to review the Student's progress.

60

There was no evidence presented that the Student took this medication

409

Although there was no evidence that the Parent did not agree with the IEP team's placement
determination, she did say that she thought the school was out to get him. She expressed her concern
about the Student turning 18 soon and "not being able to handle stress as well as signing for
himself." [Aff. Exh. I] She was also concerned with St. Mary's diagnosis ofthe Student as having
Psychotic Disorder, NOS. The District reiterated its concerns about the Student expressing homicidal
ideation, and the team agreed that it "needed interventions in place to help [the Student] that include
getting mental health help." [Aff. Exh. I] There was no regular education teacher listed among the
people participating at this IEP team meeting.
Another IEP Team meeting was held on May 12,2014. The Written Notice from this
meeting said that, "Tutoring services will continue to be implemented pending medical clearance
from a psychiatrist for [the Student] "to return to the school setting" and "Upon receipt of written
medical clearance from a psychiatrist that [the Student] is safe to return to school, the team will
reconvene to develop" a reentry plan. [Aff. Exh. K] The Parent expressed concern about being able
to get medical clearance for the Student because he was not in crisis. There was no regular education
teacher listed among the people participating at this IEP team meeting.
On May 29, 2014, the IEP team met again. The Written Notice from this meeting said that,
"Tutoring services will continue to be implemented pending psychiatric clearance for [the Student]
to return to the school setting" and "Upon receipt of written medical clearance from a psychiatrist
that [the Student] is safe to return to school, the team will reconvene to develop" a reentry plan.
[Aff. Exh. M] There was a disagreement about whether the documentation received from St. Mary's
was adequate to readmit the Student, with the Mother believing that it was, and the District
disagreeing. [Aff. Exh. M] There was no regular education teacher listed among the people
participating at this IEP team meeting.

410

On August 1, 2014, the Parent filed this request for a due process hearing. At an IEP Team meeting
held on August 25, 2014, the Parent specifically requested that the IEP Team return the Student to a
full school day, effective immediately and without any preconditions. [Aff. line 32, Exh. Q]

DISCUSSION
Under 20 USC 1415(j) and the accompanying regulations, 34 CFR 300.518, once a
due process hearing request is sent to the other party and while awaiting the decision of the due
process hearing officer or court, a student must remain in his or her current educational
placement unless the parents and school district agree otherwise. The purpose of the provision is
to maintain stability and continuity for the student until the dispute between the parties is resolved.
The Maine law and regulations contain the same standard.
Even if the current placement becomes untenable in the view of either party, that does not
alter the fact that it is the status quo and the last agreed-to placement. Millay v. Surry Sch Dept,
55 IDELR 255 (d. Me. Dec. 8, 201 0).
The Parent asserts in this motion that the Hearing Officer should make a determination
that the IEP dated March 6, 2014 is the last IEP the parties agreed to be appropriate, and that I
should order this as the stay put placement during the pendency of these hearings. This would
essentially involve deciding that, contrary to the Written Notices, the Parent did not agree with the
determinations of the IEP team at the several meetings that were held after March 6. To reach
that conclusion, I would have to rule on two of the main issues in this case using the Parent's
Affidavit and attachments as the only evidence, rather than holding the hearing to make
those determinations. 61 The purpose of the hearing is to give both parties an opportunity to

61

The Amended Prehearing Order dated September II, 2014 sets forth the following issues, among others: (1) Did
the District violate the IDEA, either procedurally or substantively, including whether any change in placement denied
the Student a FAPE in the LRE, by determining to place the Student on tutoring in March of2014? (2) Did the District
violate the IDEA, either procedurally or substantively, in connection with the Student's March 17, 2014 manifestation
determination?

411

present both testimonial and documentary evidence, upon which my decision will be based.
Consequently, it would undermine the hearing process to make this important determination
based upon an Affidavit.
From the evidence submitted by the Parent, it is evident that she was aware that she
could disagree with the determinations of the IEP team, as she had done so in the past. Yet
there were Written Notices stating that the IEP team was unanimous in its determinations
about the Student's placements, and no attempt was made by the Parent to correct any
perceived inaccuracies in the Written Notices. At the March 17 IEP team meeting when the
Student's placement was changed to the current stay put tutoring placement, the section for
parent comments said, "Parent had no questions and agreed with determinations." If the
Parent disagreed, why did she not say when she received this notice? I do not have the
answer to that question in the documents before me. Additionally, there was no allegation
that she did not receive her procedural safeguards, so presumably she was aware that she
had a right to disagree with the determinations of the IEP team, as she had done in the past,
and request a due process hearing if she objected to the Student's placement, which she
ultimately did.
The Parent also alleges that there were procedural violations, such as the IEP team did not
have a regular education teacher at several of its meetings. The IDEA, however, limits a hearing
officer's authority to find a denial of FAPE based solely upon a procedural violation, so it is
necessary to take evidence to determine whether the procedural violation actually resulted in a
denial ofFAPE before making such a finding. 20 USC 1415(f)(e)(E). Therefore, making such a
ruling based upon the information before me is not possible.

412

For the foregoing reasons, the Student's current placement is the stay put placement. The Parent's
Stay Put Motion is hereby DENIED.
Dated: September 12, 2014
_____________________
Shari Broder, Esq.
Hearing Officer

413

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE
MS. S., individually and as parent and legal guardian of BS,
Plaintiff'

v.
REGIONAL SCHOOL UNIT 72,
Defendant
No. 2:13-cv-453-JDL
RECOMMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW
The plaintiff parent appeals from a decision of a Maine Department of Education
C' v1DOE") hearing officer denying her challenges to decisions of the defendant, Regional School
Unit 72, with respect to her son, BS, and his eligibility for services under the Individuals with
Disabilities Education Act ("IDEA"), 20 tlS,C. 1400 et seq., and Maine's laws regarding
education of exceptional students, 20-A M.R.S.A. 7001 et seq. The plaintiff asks this court to
reverse the hearing officer's decision and enter judgment in her favor, requiring the defendant to
reimburse her for costs incurred in placing BS at the Eagleton School, a private school in
Massachusetts, and finding that the defendant wrongly failed to provide BS with special education
services in the three years preceding his time at the Massachusetts schooL Plaintiffs
Memorandum of Law ("Plaintiff's Memorandum") (ECF No. 22) at 45. After careful review of
the record 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 the defendant.
I.

Proposed Findings of Fact

Ms. S. adopted BS from Vietnam in 1995 when he was ten months old. Order [After
Administrative Hearing], Record Volume XVI at 3654 ("R. V. XVI at 3654"). BS initially lived
in Rumford and received services for developmental delays, particularly in the area of speech-

414

language skills. Id. In kindergarten, his education was government by an Individualized Education
Program ("IEP") issued to him as a student with speech-language impairment. Id.
The family moved to Fryeburg in November 2001. I d. BS arrived at the Snow School
with the same IEP. Id. at 3654-55. During his second-grade year, the school changed BS's
eligibility category to Other Health Impairment. Id. at 3655. The plaintiff began communitybased counseling services for BS at around this time. Id. During his third-grade year, the school
dismissed BS from special education services. Id.
During his fourth-grade year, the school re-identified BS as eligible for special education
and related services under the category of a speech and language disability. Id. During fifth grade,
BS received special education services all year. Id. For his sixth-grade year, BS moved to a
different school, where the plaintiff is a teacher. Id. He continued to be eligible for special
education services as a student with speech-language impairment. Id.
BS received IEP services for most of his seventh-grade year. Id. at 3656. After conducting
further testing in the early spring of 2008, it was determined that BS no longer met the criteria as
a student with a speech-language impairment, and he was dismissed from special education. Id.
In the spring of 2009, the plaintiff sought a private psychological evaluation with Dr. Michael
Broderick in Portland. ld. The plaintiff referred BS for consideration of his special education
needs on May 14, 2009, based on Dr. Broderick's report. Id. She listed BS's suspected areas of
disability as "ADHD, language, OHI, social." Id.
BS enrolled at Fryeburg Academy beginning in his ninth-grade year. Id. Fryeburg
Academy is the contract school for high school students residing in Regional School Unit No. 72.
Id. At an IEP Team meeting held on June 2, 2009, the school determined that BS did not qualify
for special education, stating that the evaluation showed no "adverse effect of his working memory
with his academics." Id.

415

BS was provided with a 504 Plan in June 2009 in an attempt to address his "core receptive
and expressive" language deficits with classroom accommodations. Id. at 3657. BS was placed
in the "Transition Program" at Fryeburg Academy, with a 504 Plan for ninth grade that provided
arrangements for oral presentations; permission to leave class to speak to a designated person; and
an allowance to provide delayed responses. Id. For the tenth grade, BS was provided with a
normal schedule of college-prep courses. Id.
The plaintiff made another referral for IDEA evaluation on January 21, 2011. Id. The
school had Nancy Smith-Jewell, Ph.D., evaluate BS during March and April2011. Id. Dr. SmithJewel noted significant concerns with verbal comprehension and working memory, and could not
calculate a full-scale IQ. Id. at 3657-58. She also noted that "the picture painted by [Ms. S.] of a
boy in psychological distress is not a perception shared across his teachers and administrators ...
[BS] is not demonstrating significant behavioral or emotional challenges within the school
setting." Id. at 3658. She concluded that BS'S ability to interact socially with his peers in a
meaningful way was affected by "significant language issues," but that it "does not appear that his
school based behavioral needs necessitate a residential placement at this time." Id.
The schools speech and language pathologist conducted a speech-language assessment of
BS on April I5, 2011. Id. She concluded that although BS's academic grades were "within
average,'' his "overall scores are severely below his peers." Id. She reported that teachers "have
noted his difficulty with expressing his thoughts and needs in class.'' Id. At his IEP meeting on
May 4, 20 II, BS was identified as eligible for IDEA services in the categories of speech-language
impairment and specific learning impairment. Id. at 3658-59.
The school's proposed IEP for BS, to be implemented at Fryeburg Academy, included 45
minutes per week of speech-language therapy and four 45-minute sessions per week of special
education services in the Academy's Learning Center. ld. at 3659. Classroom accommodations
and supports included obtaining additional help outside the classroom, extra time to respond to

416

oral questions, assistance with processing discussion of difficulties, and access to the Learning
Center to complete work. Id. It did not include any extended school year services. Id.
The plaintiff engaged the schools speech and language pathologist for private summer
speech and language services in 2011. Id. An assessment of BS conducted by Sweetser on June
20, 2011, listed his primary diagnosis as Autistic Disorder, with secondary diagnoses of Mixed
Receptive and Expressive Language Disorder and Depressive Disorder NOS. Jd. BS began to
receive Home and Community Treatment services through Kerry Zabicki, LCPC, for 4-6 hours
per week at his home. Id. at 3659-60.
An IEP Team meeting was held on September 8, 2011, at the request of the plaintiff, to
review information from the Sweetser assessment and diagnosis and information on BS's summer
programming and plan for the upcoming school year. Id. at 3660. The Team did not change the
IEP but did require additional reporting between home and school on the social scripts during BS's

speech and language sessions. Id. BS's eleventh-grade academic schedule included several
vocational level courses. Id.
BS's speech and language services provider worked with him for 45 minutes per week,
including work on his social skills goals. Id. She also provided consultation services with other
staff, which involved regular communication with the plaintiff and other team members. Id. She
provided consulting services more frequently than the one time per month for 15 minutes called
for in the IEP. Id. at 3661.
BS's special education teacher felt that he was benefitting from the program in the fall of
2011. Id. She testified that BS was more involved with student activities, was expressing himself
to teachers, talking more, and "starting to come out of [his] shell." Id. BS's IEP Progress Report
dated October 28, 2011, indicated that he had achieved "limited progress," and his grades were all
in the C range or above. Id.

417

In late October 2011, the special education teacher noticed that BS was missing some of
his classes with her. Id. at 3662. On November 2, 2011, she sent an email to the plaintiff noting
that BS had become friends with another student and that she was "hoping he is not following that
student's lead." Id. On November 4, 2011, the plaintiff notified the District's special education
director that she would be keeping BS at home due to concerns about bullying and BS's safety at
school. Id.
BS's IEP team met on November 9, 2011, to address the plaintiff's safety concerns. Id.
The written notice of the meeting indicates that the plaintiff requested that BS receive group-based
instruction in social skills. Id. The team did not address this request. Id. The school's special
education coordinator stated that the psychological services provider was working with students
individually for scheduling reasons. Id. The parties later agreed that BS's IEP should be enhanced
to include escort by an educational technician beginning on November 14, 2011, "in all classes
and in between classes." Id. at 3663. The school agreed to add a behavior plan to the IEP and to
have BS meet daily with his advisor. Id.
On November 1 0, 2011, BS left the school after meeting with his special education teacher
and the assistant principal without telling anyone. Id. at 3664. On November 15, BS was found
sleeping in the Academy's "dungeon" when he did not meet his escort at the appointed time. Id.
The educational technician assigned to escort BS agreed, at his request, to maintain a moderate
distance between herself and him to minimize his embarrassment. Id. at 3664-65. On December
7, 2011, she and BS had arranged to meet after his final class before lunch, but he left ahead of her
and walked away at a speed that did not allow her to keep up. Id. The technician went to the
location where BS was due to go at lunch time, but BS did not show up. Id.
The technician found BS waiting for her at his next class after lunch. Id. She did not tell
anyone that he had eloped. Jd. BS eloped on each of the following two days while being escorted
by the technician. Id.

418

On December 14, 2011, it was determined that BS had stolen sneakers from one of the
Academy dormitories during his elopement on December 7. ld. The Academy's Judicial Board
ultimately determine to expel BS from the Academy due to this theft. Id. On January 6, 2012, the
District held an IEP team meeting to determine whether the theft of the sneakers by BS was a
manifestation of his disability. Id. at 3666. The team concluded that it was not. Id. At this
meeting, the team ordered tutoring for BS starting on January 18, 2012, for 2.5 hours a day. Id.
The school did not provide educational services to BS between December 14, 2011, and January
18, 2012. Id.
The plaintiff disagreed with the manifestation decision but decided not to seek
readmission of BS. Id. At an IEP team meeting held on February 2, 2012, the
plaintiff objected to the abbreviated day tutorial schedule, and the written notice for
this meeting notes that "[t]eam members all agreed that [BS] required a full-day
program." ld. The discussion at this meeting centered on alternative educational
programs and possible schools for placement. Jd. at 3667. The REAL School was
identified as a possible placement for BS. ld.
On February 10, 2012, the director of the REAL School informed the director of
special education for the defendant that the REAL School was willing to accept BS as a
student. ld. The plaintiff and BS looked at a variety of other schools before agreeing to
placement at the REAL School starting on February 27, 2012. Id. The plaintiff
understood that the REAL School program was provided in a shortened day format and
expressed concern about the shorter day. ld.
BS began Section 28 rehabilitation services at home on February 27, 2012. ld.
These services were provided by the Maine Department of Health and Human Services
C'DHHS") after BS returned home, from about 4:15p.m. to 7:00p.m. ld. at 3668.

419

The REAL School is a state-licensed educational program for special or regular

education students in grades 7-12, located in Falmouth, Maine. Id. It serves disabled
and non-disabled students primarily from the Windham/Raymond school district. ld.
The REAL School is a "project-based" learning center, where students are taught in both
traditional and interdisciplinary settings in the community. Id. The typical REAL
School student has had a difficult time in a traditional school setting. Id. REAL School
students attend school for 4.5 hours per day and also participate in extended outdoor
adventures. ld.

BS's speech and language services provider continued to provide speech therapy to
BS while he attended the REAL School, working with him from 7:30 to 8:00a.m. one day
per week. Jd. This was reflected in BS's IEP. ld.
On March 30, 2012, the IEP Team met to discuss BS"s placement at the REAL
School. Jd. The plaintiff wanted BS to attend full-day school or tutoring. ld. The school
declined this request, noting that the REAL School schedule "addresses student[s'] needs
throughout the[] day" in a way that is different from traditional schools where students spend
time in lunch, study halls, and passing time between classes. ld. at 3668-69. The students'
outdoor trips are not reflected in the 4.5 hours per day of class time. ld. at 3669. The IEP
team did not address ESY services for BS at this meeting. Id.
As a result of the March 30 meeting, the IEP team decided to continue BS's
placement at the REAL School, to keep his current goals, and to add goals with regard to his
social behaviors and transition planning. Id. BS found a sense of comfort and safety at the
REAL School. Id. The REAL School conducted a Functional Behavior Assessment and
prepared a Positive Behavior Support Plan for BS that was reviewed by the IEP team at the
meeting held on March 30, 2012. Id. BS's REAL School report card issued on June 19,

420

2012, indicated grades in the mid 90s for both the third and fourth quarters, and a passing
mark for his "adventure based'' programming. Id. at 3670.
The REAL School's proposal for BS's summer program consisted of 9 hours of
social work services and three days of adventure programming. ld. The social work
services did not take place, but BS met with his special education teacher and attended two
summer kayak trips, one ofwhich involved another student. Jd. at 3670-71. In the summer
of2012, Dr. Slap-Shelton issued a neuropsychological report on findings from evaluations of
BS conducted between March
26 and July 21, 2012. Id. at 3671. The evaluation was performed at the request of BS' s
Sweetser case manager and was received by the school on or about August 15, 2012. Id.
Many of BS's scores were in the average range, with the exception of vocabulary,
understanding directions, and fast paced, less structured tnemory testing. Id. Dr. SlapShelton found that BS met the criteria for a diagnosis of autism. Id. at 3672. Dr. Slap-Shelton
considered BS to be "a candidate for therapeutic residential placement for adolescents with
Autistic Disorder and other developmental disorders." Id. at 3672-73. In August 2012, BS
was evaluated for auditory processing deficits, and the examiner concluded that BS had an
integration deficit that adversely affected his auditory processing of language. Id. at 3673.
At the IEP Team meeting on August 27, 2012, BS stated that he rated the REAL
School as "perfect" Id. The plaintiff requested a compensatory placement, reiterating her
concerns about the abbreviated academic day and the long commuting time for BS. Id. The
Team was unable to compiete discussion and expressed a need to reconvene as neither Dr.
Slap-Shelton nor Dr. Sheckart, who as hired by the school to conduct additional testing of
BS, were able to attend. Id.

421

At the follow-up IEP Team meeting held on September 10, 2012, the team reviewed
the recent evaluation reports. Id. Several concerns were raised about Dr. Slap-Shelton's
assessment. Id. While there was no dispute about identifying BS as a student with multiple
disabilities, the team was unable to reach agreement on the identification of autism. Jd. at
3673-74. Both the plaintiff and the doctor who diagnosed auditory processing deficits
requested increased speech- language services. Id. at 3674. The plaintiff requested
residential placement. Id. Changes were made in the transportation to reduce BS's drive time
to the REAL School. Id. The Written Notice from this meeting indicated that BS would be
assessed by Dr. Sheckart and would be entitled to attend a fifth high school year. Id.

Dr. Sheckart conducted several tests of BS on September 18, 2012. Id. at 3674-75.
He reported that BS had the capacity for organization, insight, and flexibility and that
interaction of the processes of thinking with social interactions created pressure points for
him. Id. at 3675. Dr. Sheckart was not able to opine on the diagnosis of autism. Id. at
3676. He testified that

a residential placement was unnecessary, and that BS had

demonstrated the ability to succeed within the public school framework. Id. He did not believe
it would be appropriate to place BS at a boys- only residential facility. Id,
BS obtained the following grades at the REAL School during the 2012-13 year:
English/Language Arts, 98; Math, 98; Science, 98; Social Studies, 95; integrated service
learning, P; and adventure-based learning/PE, P. Id. at 3677. In progress notes date October
31,2012, BS's special education teacher noted that BS demonstrated more effective strategies
for building and maintaining friendships, participated in discussions and activities, and
completed all classroom assignments. Id. at 3677-78.
On October 10,2012, the plaintiff was formally appointed as BS's guardian under
Maine law. Id. at 3678. She provided the school with a letter dated October 16, 2012,

422

explaining her decision to place BS at the Eagleton School. ld. She wrote that she was
rejecting "as inappropriate the IEP and placement offered to [BS] for the 2012-2013 school
year" and stated that BS was entitled to compensatory services for the past failure of the
school to provide BS with a free appropriate public education. ld. The school denied her
request for reimbursement of the cost of the Eagleton program. Id.
Dr. Sheckart issued a follow-up report that relied solely on feedback from BS's
REAL School teachers. Id. The report noted ongoing concerns about BS's development and
maintenance of

interpersonal

relationships

with

peers

outside

of the

educational

environment and adult supervision, and that he was engaged and learning as a willing and
capable student. ld. at 3678-79. BS had seven sessions of direct speech therapy during this
school year. ld. at 3679. In the November 1, 2012, IEP Team meeting, the school's speech and
language pathologist noted that she saw a huge difference in BS after a trip to Florida with the
REAL School and that he would have continued to benefit from staying at the REAL School. Jd.
The team reviewed the Sheckart report and denied the plaintiffs request for reimbursement of the
cost of the Eagleton program. Id.
BS began his programming at Eagleton on November 5, 2012. ld. at 3680. He participated
in a full-time, 24/7 residential program, with instruction in academics, social skills, and activities
of daily living, as well as counseling and therapeutic interventions. Jd. The Eagleton School
serves approximately 60 male students, age 11 and up, with a variety of disabilities. Jd. Students
are grouped by ability and age. Id. BS did well at Eagleton and blossomed socially. Id. Eagleton's
education director felt that BS was ready to transition back to the REAL School in the fall of20 13,
provided that he received support for his social/emotional and autism deficits, along with weekly
speech and language suppoti for one or two hours. ld.
The school reconvened BS's IEP Team for a meeting on March 25, 2013. Id. at 3681.
Eagleton was utilizing the IEP developed by the team at the November I, 2012 meeting. Id. In

423

collaboration with Eagleton representatives who participated by telephone, the team developed a
new IEP for BS, but again called for his placement at the REAL School. Id. From November
2012 through August 2013, the plaintiff spent $115,782.30 on BS's program at Eagleton. Jd.
The defendant agreed to permit BS to complete his education with a fifth year of high
school during the 2013-2014 school year. Id. He was placed at the REAL School following his
completion ofthe Eagleton program in late August 2013. Id.

II. Discussion and Conclusions of Law

A. Statute of Limitations
The IDEA defers to state time limits for requesting an administrative hearing
from which an appeal may be taken to federal court. Specifically, it provides, in relevant
part:
A parent or agency shall request an impartial due process hearing
within 2 years of the date the parent or agency knew or should have
known about the alleged action that forms the basis of the
con1plaint, or, if the State has an explicit time limitation for
requesting such a hearing under this subchapter [20 USCS 1411 et
seq.], in such time as the State law allows.
20 U.S.C. 1415(f)(3)(C).
In Maine, prior to January 2010, the Maine Unified Special Education Regulations, Code
Me. R. 05-071 ch. 101 (20 12) ("MUSER"), which are approved by the Maine Legislature,
specified that a request for a hearing must allege a violation that occurred not more than four years
before the date that the parent knew or should have known about the alleged violation and that the
hearing request itself must be filed within four years of that date. See Exhibit A to Plaintiffs
Memorandum, Department of Education, State of

Maine, 05-071 Chapter 101, Maine

Unified Special Education Regulation, Birth to Age Twenty, Proposed Emergency

Refinements, Fall2009, at XVI.5.A.2 & XVI.13.E. In January 2010, the Maine

424

Department of Education issued the emergency changes it proposed for MUSER. See
Exhibit B to Plaintiffs Memorandum, Department of Education State of Maine 05-071
Chapter 10 I, Maine Unified Special Education Regulation, Birth to Age Twenty, Emergency
Regulation, January 19, 2010. As was the case with the proposed refinements, the emergency
regulations changed the term for the limitation period in which claims must arise from four to two
years ( XVI.5.A.2), but made no change in the four-year deadline for filing requests for a hearing
(XVI.13.E).

The emergency regulations were submitted to the Maine Legislature for its review. See 5
M.R.S.A. 8071 (2)(8), (3)(8). The Legislature authorized final adoption of the emergency
regulations as proposed by the Department. L.D. 1741 (124th Legis. 201 0) (Exh. C to Plaintiff's
Memorandum). Rather than merely issuing a finally-adopted set of regulations as approved by the
Legislature, the Department changed the text of section XVI.13.E, changing the limitations period
to two years instead of four in November 2010. See Exh. D to Plaintiff's Memorandum,
Department of Education, State of Maine, 05-071 Chapter 1 01, Maine Unified Special Education
Regulation, Birth to Age Twenty, Final Adoption, 2010, XVI.13.E.
The plaintiff filed for her due process hearing on May 15, 2013. R. V. XVI at 3653. If a
two-year limitation period applies, she would be barred fr01n raising any claims that arose prior to
May I 5, 2011. The hearing officer ruled that he lacked the authority to address the question of
whether two-year limitation applied. R. V. I at 54-55. Based on the revised language of section
XVI.13.E, he declined to address the piaintiff's claims based on the schooi years 2009-2010 and
2010-2011. R. V. XVI at 3653.
The plaintiff takes the position that the four-year period in section XVI.13 .E of MUSER
applies to her hearing request because the change to a two-year period is void under 5 M.R.S.A.

425

 8057, as a substantive change that was not promulgated in a manner in compliance with the
Maine Administrative Procedure Act. Plaintiff's Memorandum at 21-22. Not surprisingly, the
defendant contends that the change from four to two years in that section of MUSER was valid
because the Department and the Legislature intended to make that change, which was only
ministerial; because the Legislature has approved the two-year limitation since 2010; and because
the Legislature in 2011 rejected a bill to change the period to six years. Defendant's Memorandum
of Law ("Defendant's Memorandum") (ECF No. 25) at 11.
The limitation addressed by section XVI.5.A.2 ofMUSER is not applicable to this
dispute. It is the application of section XVI.13.E that determines, as a threshold issue,
whether the hearing officer should have considered, and whether the court must consider, the
plaintiff's claims arising from the school years before May 15, 2011.
The defendant makes much of the fact that the Legislature was informed that the
Department of Education intended to amend both section XVI.5.A.2 and section XVI.13.E,
changing the period of time in each from four years to two. Defendant's Memorandum at
12-14. However, at least for purposes of statutory construction, legislative intent is
irrelevant when the language of the statute is clear. Phelps v. President and Trustees of Colby
College, 595 A.2d 403, 405 (Me. 1991). In the instant case, the language of section XVI.13 .E
at the time the Legislature approved it is clear. Phelps, the only authority cited by the
defendant, deals with legislative intent, but it rejects an argument that the statute at issue
should be interpreted based on the assumption that the tv1aine Legisiature was famiiiar
with the rulings of the Massachusetts courts that had interpreted similar language in a
Massachusetts statute. Id. at 405-06. Similarly, the question of legislative intent at the
relevant time is not reached in this case, because, whether containing the word "four" or the
word "two," the meaning of section XVI .13.E is not ambiguous.

426

The Maine Administrative Procedure Act provides that any rule not adopted in
confonnity with 5 M.R.S.A. 8052-54 is void.

5 M.R.S.A. 8057( I).

The plaintiff

contends that
[t]he Department never proposed a change from a four-year period to a
two-year period for filing claims under the IDEA, never noticed such a
change for public comment, and never sent such a proposed change to the
legislature for review and approval. This plain failure to comply with the
APA compels the conclusion that the two-year language in section
XVI.13.E is "void and of no legal
effect."
Plaintiffs Memorandum at 21-22. I see no requirement in sections 8052-54 that a proposed change
in an agency rule be sent to the legislature for review and approval. That requirement is found in
5 M.R.S.A. 8071-72. Section 8072 makes the admittedly major substantive rules involved in this
case subject to sections 8051 et seq. However, the proposed rules were also identified by the Department
of Education as emergency regulations, ECF Nos. 21-1 & 21-2, which by the terms of 5 M.R.S.A.
8054 makes sections 8052 and 8053 inapplicable. Section 8054 does not include any requirements for
notice. Emergency rules are only effective for 90 days, however, leaving the court to wonder when and
how the rules at issue came into full effect.

On the showing made, I fail to see how the Department of Education failed to comply with
the Maine Administrative Procedure Act in promulgating the rules at issue. The defendant,
however, does not argue the point, apparently conceding that this is in fact what happened. As the
plaintiff notes, the Maine Law Court has held that "[t]he failure of [a rule-making agency of state
government] to comply with the rulemaking provisions of the A.P.A. is a procedural defect that
we cannot overlook even should we conclude there is no showing of prejudice[,]" citing section
8057. l'lew England TVhitewater Ctr., Inc. v. Department of Inland Fisheries & Wildl fe, 550 A.2d
56, 64 (Me. 1988).
Given that standard, the defendant's contention that the Department of Education's
unilateral amendment of section XVI.13.E after legislative approval was received and before the

427

final rules were published was merely a "ministerial" change to "reflect[] legislative intent,"
Defendant's Memorandum at 11, cannot prevail. The Department of Education's stated intent to
change the limitation period created in section XVI.13.E is not consistent with the language that
was presented to the Legislature and upon which the Legislature voted. The defendant offers no
authority in support of this position, and it is inconsistent with the fact that the rule at issue is itself
considered substantive. A whole new area of litigation would open up if state agencies could alter
substantive rules after their approval by the Legislature merely by asserting that the changes were

"ministerial. ' I conclude that the department's unilateral change. to section XVI.l3.E in November
20 1 0 was ineffective.
That conclusion does not end the matter. The defendant offers two other reasons why the
court should find that a two-year limit was in effect when the plaintiff requested an administrative
hearing: the Legislature has approved additional changes to MUSER "in almost every year since
the 2010 session," and each time the Legislature approved the entire chapter as amended, including
a two-year limit in section XVI.13.E; and the Legislature in 2011 rejected a resolve that would
have amended the limitation period in section XVI.13.E to six years or four years. Defendant's
Memorandum at 14-17. The first of these arguments is persuasive.
The plaintiff objects, asserting that "there has been no indication or suggestion that the
Legislature ever considered the 2-year filing deadline in the course of approving any other
amendments made to unrelated parts of MUSER since 2011 [,]"and that "[t]he Legislature's only

duty with respect to proposed major substantive rules is to consider the changes being proposed
by the MDOE, not reconsider and/or reapprove the entire set of regulations of which they are a
part." Plaintiffs Reply Memorandum of Law ("Reply Memorandum") (ECF No. 26) at 3. She
cites no authority in support of these assertions, which suggest that the plaintiff believes that she
can have it both ways: the court must disregard evidence that the Legislature considered and meant
to adopt the amendment that she contends is void, but must assume, in the absence of direct

428

evidence, that the Legislature did not consider anything other than specific amendments brought
to its attention by the Department of Education.
In any event, I disagree. The defendant asserts that "each time the Legislature approved
proposed changes [to MUSER], it did so by approving the overall Chapter 101 regulations as
amended,

rather

than

simply

approving

specified

changes

alone."

Defendant's

Memorandum at 14-15. This assertion is supported by documents submitted by the defendant,

specifically ECF Nos. 25-14 and 25-15, both ofwhich present re-adoption of Chapter 101, with
amendments, well before the plaintiff submitted her request for a due process hearing. The twoyear limit appeared in section XVI.l3.E as it was submitted to the Legislature on these subsequent
occasions and was approved by the Legislature. Id. The fact that some ongoing or re-elected
members of the Legislature may have assumed that they had already done so makes no difference.
This conclusion makes it unnecessary to consider the defendant's second alternative
argument. The two-year limitations period applied to the plaintiffs request.
B. Specific Misrepresentation
The plaintiff argues that, if the two-year period is otherwise applicable to her request for a
hearing, she nonetheless is entitled to review of the defendant's efforts for the two school years
beginning in 2009 because she was prevented from requesting a hearing for those years in a timely
fashion because

the defendant made unintentional misrepresentations to

her. Plaintiffs

Memorandum at 22-26.
Both the federal IDEA statute and MUSER include an exception to the time limit for filing
requests for due process hearings when "the parent was prevented from requesting the hearing due
to specific misrepresentations by the local educational agency that it had resolved the problem
forming the basis of the complaint." 20 U.S.C. 1415(f)(3)(D)(i); MUSER XVI.I3.F.l. The
hearing officer concluded that this exception was not applicable in this case because the plaintiff
had not shown that any misrepresentation by agents ofthe defendant was intentional. R.V. I at 53.

429

The plaintiff lists the alleged misrepresentations at issue as the following:

1. An assertion that there was no basis on which to "proceed with the special
education referral" that the plaintiff made in November 2010, because, "according to the
District[,] [BS] was 'currently successfully completing his academic classes, and
teachers report no behavioral issues";
2. The plaintiff was "repeatedly told by her colleagues at the middle school and by
Academy staff that BS was doing 'fine' at school and there was no issue at all with
his educational progress ... despite his chronic failure to progress";
3.

None of the plaintiffs colleagues explained that "BS required social skill

instruction, speech-language therapy, and other special education and related

services to receive an appropriate education";
4. In April 2008, the defendant's special education director represented to the
plaintiff that "BS's eligibility for services had to be terminated due to a lack of
'adverse effect on academic performance'";
5. The defendant represented to the plaintiffthat BS did not qualify for special
education in June 2009 due to a lack of evidence of "adverse effect of his working
memory within his academics"; and
6. The defendant's psychologist represented to the plaintiff in June 2009 that there
was "no specialized education needed at [that] time" for BS because the issues
upon which she based her referral arose from "a mental health crisis that [went]
beyond the school."
Plaintiffs Memorandum at 23-25 (emphasis in original).

The plaintiff contends that she is not required to show that the alleged
misrepresentations were intentional in order to qualify for the waiver. As authority for this

430

position, she cites only RSU 51 v. Doe, 920 F.Supp.2d 168 (D. Me. 20 13) and
Ravenswood City Sch. Dist. v. JS., 870 F.Supp.2d 780 (N.D. Cal. 2012).

Both are

distinguishable.
In

Ravenswood, no question

was

raised as

to whether the

school district's

misrepresentations to the parent were intentional. 870 F.Supp.2d at 788-89. In RSU 51, this court
was asked to construe the second of two bases for waiver of the time lim it stated in 20 U .S.C.
14l5(f)(3)(D). 920 F.2d at 196. The two subsections provide:
The timeline described in subparagraph (C) shall not apply to a parent if
the parent was prevented from requesting the hearing due to(i) specific misrepresentations by the local educational agency that it had
resolved the problem forming the basis of the complaint; or
(ii) the local educational agency's withholding of information from the
parent that was required under this subchapter to be provided to the
parent.
20 U.S.C. 1415(f)(3)(0), 62 The school district argued that the word "withholding" in
Subsection (ii) of the statute required evidence of intentionality. 920 F.2d at 198. This court's
examination of this argument was limited to the meaning of the word "withholding," concluding
that the hearing officer properly rejected this argument, and rejecting the parents' proffered
reliance on case law interpreting the first subsection of the statute. Id. at 197-98.
The weight of case law addressing the issue raised here favors the defendant's position. In
D.K. v. Abington Sch. Dist., 696 F.3d 233 (3d Cir. 2012), the court, when faced with the
argument that the district court's holding that a high threshold of proof applies under the
"misrepresentation" subsection ofthe statute was erroneous, held that
a rule demanding at least a school's knowledge that its representations of
a student's progress or disability are untrue or inconsistent with the
school's own assessments best comports with the language and intent of
the provisions: Therefore, we hold that in order to be excused from the
statute of limitations based on 1415(f)(3)(D)(i) because the school
"specific[ally] misrepresent[ ed] . . . that it had resolved the problem,"
62

Identical exceptions appear in MUSER XVI.13.F.

431

plaintiffs must show that the school intentionally misled them or

knowingly deceived them regarding their child's progress.
Id. at 246 (emphasis in original).
Similarly, in WI{. v. Schuykill Valley Sch. Dist., 954 F. Supp.2d 315 (E.D. Pa. 2013), the
court, after considering the argument that the school misrepresented the student's progress and that
no intent to do so need be proved, held that disagreement with the school district's report "is
insufficient" to establish the exception set out in the first subsection of the statute and cited
favorably the holding in Evan H., 2008 WL 4791634, at *6, that "[T]o show a 'specific
misrepresentation,' Plaintiffs must establish not that the District's evaluations of the student's
eligibility under IDEA were objectively incorrect, but instead that the District subjectively
determined that the student was eligible to services under IDEA and intentionally misrepresented
this fact to the parents." 954 F.Supp.2d at 321-22.
In C.H. v. Northwest Indep. Sch. Dist., 815 F .Supp.2d 977 (E.D. Tex. 2011 ), the court
held that a school district's "subjective and good-faith assessment of [ ] test results" did not
constitute a misrepresentation under the first statutory exception. Jd. at 985. This holding, thus,
requires a showing of intentional misrepresentation as well.
Before applying this requirement to the incidents listed by the plaintiff, I note an additional
problem with her list. No showing has been made that any of the individuals alleged to have made
the misrepresentations at issue held a position from which he or she could bind the defendant.
Specifically, there is no evidence that would allow the court reasonably to conclude that the
plaintiffs "colleagues" were acting for the defendant school district when they told her that there
was no issue with BS's educational process or failed to explain to her that BS needed certain
special education services. For this reason, the second and third incidents on the plaintiffs list
cannot provide a basis for application of the misrepresentation exception to the statute of
Iimitations.

432

20

The plaintiff does not explain how any of the remaining four incidents on her list
could reasonably be construed to exhibit intentional behavior, such that a factfinder could
reasonably conclude that the defendant knew that the cited representations concerning BS's
progress were untrue or inconsistent with its own assessments, D.K., 696 F.3d at 246, or
that it subjectively determined that BS was eligible for services under IDEA and
intentionally misrepresented that fact to the plaintiff, W.H., 954 F.Supp.2d at 321-22. In
addition, each of the specific listed incidents presents further problems.
The first incident, an "assetiion that there was no basis on which to 'proceed with
the special education referral' Ms. S. made in November 2010, at a time when BS was failing
most of his academic classes and having substantial social difficulties with peers both at
school and on social media sites, because (according to the District) he was 'currently
successfully completing his academic classes, and teachers report no behavioral issues[,]'"
Plaintiff's Memorandum at 23, the record citation given by the plaintiff in support of this
allegation does not support the assertion that BS was failing most of his classes or that he
was having substantial social difficulties with peers at school, or that the statement in
quotation marks attributed to the defendant was otherwise known to the defendant to be
false. R. V. VI at I 3 I 8, 1321. In addition, the plaintiff does not provide any authority for
the assertion, necessarily implied by the above-quoted statement, that a school district is
bound by the IDEA to deal with a student's social difficulties on internet web sites.
The second cited incident, that the defendant's special education director in April
2008 represented to the plaintiff"that 'BS's eligibility for services had to be terminated due to
a lack of "adverse effect on academic performance[,]""' and the third incident, that the
defendant "represented to the plaintiffthat BS did not qualify for special education in June

433

2009 due to a lack of evidence of 'adverse effect of his working memory within his
academics," are similarly unsupported by the citations given to the record. SeeR. V. VI at
1265, 1320, XVII at 3707, 3709. The citations, at most, record the plaintiff's testimony that,
in April 2008, she was told "time and time again" by "[a]nybody at a special ed meeting"
that BS demonstrated "no adverse effect on his education." R. V. XVII at 3707. However,
the defendant agrees that "[f]ormer special education director Nancy Hall did state to the
parent that she did not think BS was eligible for special education and that she did not
think his circumstances adversely affected educational performance or required special
education" in 2008, 2009, and 20 I 0. Defendant's Memorandum at 20. The plaintiff cites no
evidence in the record that would allow a factfinder to draw a reasonable inference that
Ms. Hall did not actually believe this statement or that there was so much evidence to the
contrary in the record that Ms. Hall must have been misrepresenting her belief to the
plaintiff.
The plaintiff makes much of her assertion that the defendant told her that BS was
ineligible for special education services based solely on his academic performance, while the
IDEA requires eligibility to be determined on the basis of both academic performance and
functional performance. Plaintiff's Memorandum at 24-25. However, her citations to the
record do not support her contention that the defendant based its conclusions solely on BS's
academic performance, nor do they support her contention that the defendant told her that
only academic performance would be considered under the IDEA. See R. V. VI at 1265,
1320, R. V. XVII at 3707, 3709. In fact, BS's PET Team, at a November 2010 meeting,
concluded that "[t]here was no basis for the need of specialized instruction for academic or
behavioral or emotional issues[;] therefore, the special educational referral did not move
forward." R. V. VI. at 1318. MUSER

434

defines "functional performance" as "how the child demonstrates his/her skills and behaviors in
cognition, communication, motor, adaptive, social/emotional and sensory areas." MUSER )
11.16.
The final incident listed by the plaintiff is a representation to the plaintiff by the defendant's
psychologist in June 2009 that "there was 'no specialized education needed at this time'or BS,
because the issues on which she based her referral (including his severe deficits in speechlanguage and social pragmatic skills) arose from 'a mental health crisis that goes beyond the
school. Plaintiff's Memorandum at 25. The defendant does not respond directly to this
allegation of a substantial misrepresentation that prevented the plaintiff from seeking a due
process hearing. The plaintiff characterizes this as a representation that the IDEA does not
provide eligibility for services to students who are experiencing mental health issues. Id.
That is not a fair characterization of the meeting notes, which present merely a statement
of opinion by a school psychologist at a PET Team meeting in June 2009. R. V. Vl. at 1371.
There is no indication that the psychologist was including BS's "severe deficits in speech-language
skills and social pragmatic skills" in his evaluation of BS's mental health status at that time, Nor
can the notes be reasonably interpreted as a 1epresentation to the plalntllff that special education
does not provide any services encompassing mental health issues. It is merely a statement of the
psychologist's own opinion that the immediate cause of BS's problems, and perhaps the nature of
those problems, was beyond the scope of public education in general. Certainly, the psychologist's
reported statement does not purport to represent to the plaintiff that the school district had
"resolved the problem," in the language of 20 U.S.C. ) 1415(f)(2}(D). On the showing made, the
plaintiff is not entitled to the benefit of the exception to the applicable statute of limitations arising
from a specific misrepresentation by the defendant to the effect that it had resolved her complaint,

435

E. Request for Compensatory Relief

The plaintiff contends that she is entitled to reimbursement of the cost of BSs attendance at
Eagleton School from November 2012 through June 2013. Plaintiffs Memorandum at 39-44. If the court
upholds the hearing officers decision that the defendant provided BS with a FAPE for that school year, as
I recommend, this request is moot.
III.

Conclusion

For the foregoing reasons, I recommend that the hearing officers decision be

AFFIRMED.
NOTICE
A party may file objections to those specified portions of a magistrate judges report or
proposed findings or recommended decisions entered pursuant to 28 U.S.C. 636(b)(1)(B) for which
de novo review by the district court is sought, together with a supporting memorandum and request
for oral argument before the district judge, if any is sought, within fourteen (14) days after being
served with a copy thereof. A responsive memorandum and any request for oral argument before the
district judge shall be filed within fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right to de novo review by the
district court and to appeal the district courts order.

Dated this 29th day of November, 2014.

/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

436

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE
S.D., individually and as parent
and legal guardian of HV, a minor,
Plaintiff,
v.
PORTLAND PUBLIC SCHOOLS,
Defendant.
Case No. 2:13-cv-00152-JDL
ORDER ON PLAINTIFFS APPEAL OF
THE ADMINISTRATIVE HEARING OFFICERS DECISION
This action is before the court on the complaint filed by the plaintiff, SD, who
requests that the court vacate an administrative hearing officers decision under the
administrative procedures of the Individuals with Disabilities in Education Act
(IDEA or the Act), 20 U.S.C. 1415(i)(2). For the reasons stated below, I find that
the administrative hearing officers decision should be AFFIRMED IN PART and
VACATED IN PART.
I. FACTUAL BACKGROUND
SD brings this appeal on behalf of her 14 year-old son, HV. Plaintiffs Brief,
ECF No. 22 at 1. In March 2008, HV was diagnosed with a variety of reading and
anxiety disorders which required a structured and systematic multi-modal reading
approach that focuses on phonics. Administrative Record at 2536. HVs diagnosing
psychologist, Sharon Etzweiler, Ph.D., recommended the Orton-Gillingham program or
the Wilson Reading Program (Wilson) to address HVs reading difficulties. Id.

437

Shortly after HVs diagnosis, the Portland Public Schools (Portland or the
School District) found HV to be eligible for IDEA services under the category of
specific learning disability and held an individualized education plan (IEP) team
meeting at which it was decided that HV would receive five hours per week of oneon-one (1:1) or one-on-two (1:2) instruction in reading and writing. ECF 22 at 2; R. at
2537. Accordingly, HV received reading instruction in the Wilson program through the
end of his second grade year (2007-2008) and throughout his third grade (2008- 2009)
and fourth grade years (2009-2010) from Cynthia Johnson, a Wilson-certified special
education teacher. R. 2537-38. HV also received extended school year tutoring in
the Wilson program during the summer breaks between school years. Id.
A.

Fifth Grade (2010-2011)

In May 2010, HVs IEP team met for its annual review and drafted HVs fifth

grade IEP to require specially designed instruction 5 hours weekly to address

reading or writing to be conducted in a small group or individual setting. R. 1127.
The IEP team reconvened in November 2010 to address SDs concerns about
how HVs Wilson instruction was being administered. R. 679-688. Although the
Wilson program required 100% accuracy on a given level in order to progress to the
next level, Johnson admitted that she sometimes allowed HV to progress to the next
level if he exhibited 90% accuracy in order to keep him motivated. R. 2540-41. SD
objected to Johnsons approach, and asked that she administer the Wilson program
without skipping any steps, which Johnson agreed to do. Id. at 2541. Later the same
month, Jane Boulos, a Portland school psychologist, conducted HVs triennial

438

reevaluation and found that he had significant deficits in word reading, reading
fluency, and reading comprehension. ECF No. 22 at 5. The IEP team reconvened
again in January 2011 in order to hear Boulos present the results of her evaluation
and agreed that the IEP should continue to require 5 hours per week of special,
multi-sensory instruction in reading and spelling. R. 1045; R. 2544.
B.

Sixth Grade (2011-2012)

In June 2011, the IEP team met for its annual review and to plan HVs

transition from elementary to middle school. R. 2544; ECF No. 22 at 6. Johnson

reported to the team that HV was working on level 7 of the Wilson program, and that
he was doing quite well. Id. The team agreed that HVs sixth grade IEP should
require five 50-minute sessions per week of individual, multisensory instruction in
reading and writing; three 50-minute sessions per week of special education support to
help HV complete classroom assignments; and extended school year services
consisting of six hours per week for five weeks during the upcoming summer. R. 1034.
HV began attending the sixth grade at Lincoln Middle School (Lincoln) in
September 2011. ECF No. 22 at 6. Almost immediately, a scheduling conflict arose
between HVs participation in band and his 50-minute 1:1 reading instruction, which
SD and school officials resolved by reducing the reading instruction to one 50-minute
session every other day. R. 275-278; R. 2546. They agreed to reevaluate HVs reading
progress in four to six weeks to ensure that the reduced amount of 1:1 instruction was
not affecting his reading progress. Id. At approximately the same time, HVs new
Wilson-certified instructor, Maryanne Scally, reviewed HVs files and decided to re-

439

test him in the Wilson program, identifying what she characterized as some holes in
his knowledge which caused her to return HV to Wilson level 2. R. 2546-47. SD
testified that she only learned of this setback a couple of months into the school year
and that she learned of it from HV rather than from a teacher or other school official.1 R.
2630.
After meeting with HVs teachers in late October 2011, SD decided to have HV
drop band and take private music lessons in order to allow him to devote more time to
his 1:1 reading instruction. R. 2547. Yet rather than return to five 50-minute
sessions per week, the school scheduled HV for four 50-minute sessions per week. Id.
Through the end of 2011 and into January 2012, HV experienced a number of
bullying incidents which caused him to suffer increased school-related anxiety. ECF
No. 22 at 7. For example, in December, some students pinned HVs arms behind his
back and verbally taunted him; in January, another student punched HV in the face.
Id.; R. 2548. As HV was subject to further bullying, he began to react with explosive
anger. ECF No. 22 at 7. Following the punching incident, SD decided to keep HV out
of school until she was assured by the school administration that he would be safe.
R. 2549. HV missed a total of three days of school before returning to classes.
R. 2550. Following his return, SD chose to have Scally spend her 1:1 instructional
time helping HV catch up on work that he missed while he was out of school, rather
than teach the Wilson program. R. 2550; Defendants Brief, ECF No. 25 at 20. On

_________________________________________________________________________________________________
1

Scally testified that the first time she spoke with SD regarding HVs drop from Wilson level 7 to level
2 was in January 2012. R. 2810. Scally further testified that SD did not seem surprised and that
[t]here was nothing about that meeting that gave me any cause for concern or if [SD] wouldnt have
been happy, she didnt express it in that meeting. Id.

440

February 6, 2012, HVs English teacher, Ms. Hood, emailed SD regarding her concerns
about HVs return to school. R. 2550. She wrote that she had observed changes in
HVs behavior, including lots of fidgeting, refusing to open the book from which the
class was reading, being generally unfocused, and making loud comments while the
teacher was talking. Id. In his therapy sessions, HV stated that he felt like he was
being blamed for his problems in school. R. 2551.
By March 2012, SD was very upset and concerned about the decline in HVs
behavior at school as well as his lack of academic progress. R. 2553. On March 6, she
met to discuss HVs situation with Steven Nolan, the principal of Lincoln Middle
School; Suellyn Santiago, the schools Assistant Principal; Deb Mullis, HVs case
manager; and Jayne Boulos, the school psychologist. Id. At the meeting, SD
expressed her opinion that nothing the school was doing was working, noting in
particular that Maryanne Scally was not helping HV, that he was not benefiting from
the Wilson program, and that she did not want Scally working with HV anymore. Id.;
R. 2870-73. She also insisted on removing HV from his English and Social Studies
classes because she felt that those teachers, Gail Hood and Nancy Chard, were not
meeting HVs learning style. R. 2685-86; R. 2872. SD threatened to pull HV out of
Lincoln altogether unless she saw some changes. R. 2872. The only other Wilson
instructor available at Lincoln was not certified, and therefore SD refused to have
that instructor work with HV. R. 2871. Deb Mullis suggested switching HVs reading
instruction from the Wilson program to a different program called System 44, a
reading program similar to the Wilson program except that it was not multi-sensory.

441

R. 2696. Although she was somewhat skeptical, SD agreed to have HV try System 44
under the condition that he receive 1:1 instruction and because it would mean that he
would no longer be working with Ms. Scally. R. 2696; R. 2554. Thus, after four years
of 1:1 or small group instruction, HV ended the 12-level Wilson program in March
2012 at only level 2. ECF No. 22 at 9.
At the end of March 2012, HV began System 44. R. 2557. Initially, SD wasnt
thrilled with the environment because HV had problems with the computer system
and reported that his teacher, Ms. Krasowski, became angry with him, but by early
April HV told his mother that school was going well and that he was learning again.
Id. Nevertheless, on April 12, SD emailed Jayne Boulos to say that System 44 was a
waste. R. 1508. Either the computer doesnt work, the teacher is out sick, the
library door is locked, and on and on. Id.
In late April 2012, SD hired Christopher Kaufman, Ph.D., a licensed
psychologist and certified school psychologist, to perform an initial consultation and
diagnostic interview of HV, as well as to review HVs previous testing and to attend
IEP meetings on May 16 and 30. R. 2558. Kaufman observed that HV had difficulty
holding onto the progress he had made in his reading instruction, and assumed that
his problems were with working memory or long-term memory. Id. Kaufman felt
that it was very unusual for a student to regress in the Wilson program from level 7 to
level 2.5, and assumed that this was due to HVs memory problems.2 R. 2594. He
______________________________________________

I note that there is a minor discrepancy between the testimony of Maryanne Scally, who testified
that HV was at Wilson level 2 at the beginning of the sixth grade, see R. 2808, and Christopher
Kaufman, who testified that HV was at level 2 or 2.5. R. 2594. This discrepancy is not significant
enough to affect my analysis, however.
2

442

did not attribute HVs poor performance to a failure of the IEP or to Cynthia
Johnsons instruction. Id.
At the May 16 IEP team meeting, Kaufman recommended that HV continue to
work in a multisensory systematic reading program. Id. Notwithstanding the fact
that System 44 was not multisensory, the IEP team unanimously agreed to continue
the System 44 program with 1:1 instruction. R. 2559. Kaufman later agreed in
testimony

before

the

administrative

hearing

officer

that

the

IEP

teams

determination was reasonable based upon the information they had at the time. Id.
C.

Seventh Grade (2012-2013)

Two weeks later, on May 30, the IEP team reconvened for its annual review

and to draft HVs IEP for the seventh grade. Id. The team agreed that the special
education services for HV in the upcoming academic year would include support in
various subject matters for 50 minutes per day each and a continued focus on System
44. R. 2559-60. The team also agreed to change HVs System 44 instructor at SDs
request. R. 2559.
SD subsequently drafted a letter on August 21, 2012, notifying the School
District that she was enrolling HV in the Aucocisco School (Aucocisco), a private
school that focuses on students with learning disabilities, for the seventh grade and
that she intended to seek reimbursement for the $29,900 tuition she paid, plus
associated costs. R. 2561.
At a resolution session held on October 30, 2012, the School District offered SD
another opportunity to choose from one of the three middle schools in Portland. R.

443

2564. Portland also offered an amended IEP that included one 30-minute session of
social work per week and one 30-minute session of social skills training per week,
plus the previous special educational services offered for the seventh grade. Id. SD
rejected this offer in favor of keeping HV at Aucocisco. Id.
The parties participated in a special education due process hearing pursuant to
20 U.S.C. 1415 et. seq. and 20-A M.R.S. 7207-B, over four days in December
2012. In a decision dated January 22, 2013, Hearing Officer Shari Broder, Esq. (the
hearing officer), determined that HV had received a free, appropriate public
education during his fifth grade year (2010-2011); that Portland denied HV a free,
appropriate public education in the sixth grade (2011-2012) only to the extent that he
received four days per week of 1:1 reading instruction rather than the required five
days per week; and that Portlands IEP and placement offer for HVs seventh grade
year (2012-2013) was an appropriate plan for educating HV. R. 2581. The hearing
officer ordered Portland to pay for the cost of HVs attendance for six weeks at the
Aucocisco summer academic intensive program for three hours per day, plus the costs of
two hours per day of literacy tutoring for two weeks at a rate not to exceed $50.00 per
hour, plus transportation costs. Id.
SD filed the instant appeal on April 19, 2013. ECF No. 1.
II. LEGAL STANDARD
A.

IDEA
The IDEA is a comprehensive statutory scheme which Congress enacted to

ensure that all children with disabilities are accorded a free appropriate public
education, and that both their rights and those of their parents are protected. 20

444

U.S.C. 1400(d)(1)(A)-(B); Frazier v. Fairhaven School Committee, 276 F.3d 52, 58

(1st Cir. 2002).
As a condition for receiving federal funds, states are required to provide a free,
appropriate public education to all disabled children. Lessard v. Wilton Lyndeborough
Coop. School Dist., 518 F.3d 18, 23 (1st Cir. 2008). In order to provide a free,
appropriate public education, a school must create and then follow an individualized
education program (IEP) for each disabled child. D.B. ex rel. Elizabeth B. v.
Esposito, 675 F.3d 26, 34 (1st Cir. 2012). The IEP is a written statement for each
child with a disability that is developed, reviewed, and revised in accordance with the
IDEA and which must include the following: a statement of the childs present levels
of academic achievement and functional performance; a statement of measureable
annual goals; criteria for measuring progress toward those goals; and a statement of
the specific services that the school will offer. 20 U.S.C.A.
1414(d)(1)(A).
The Act imposes additional procedural and substantive requirements with
regard to the IEP. See Roland M. v. Concord School Commn, 910 F.2d 983, 987 (1st
Cir. 1990). For example, parents have the right to be part of the IEP team along
with the teachers and other educational professionals charged with formulating a
childs particular IEP. 20 U.S.C.A. 1414(d)(1)(B); Lessard, 518 F.3d at 23. The
purpose behind such procedural safeguards is to guarantee parents both an
opportunity for meaningful input into all decisions affecting their childs education
and the right to seek review of any decisions they think inappropriate. Pihl v.
Massachusetts Dept. of Educ., 9 F.3d 184, 187 (1st Cir. 1993) (quotation omitted).
Thus, in the event of a dispute between the school and the childs parents regarding
445

the IEP, the parents have the right to demand a hearing by an impartial hearing
officer. 20 U.S.C.A. 1415(f)(1)(A), (B)(ii). A party dissatisfied with a hearing officers
decision may appeal to a state court or a federal district court, which must (i) receive
the records of the administrative proceedings; (ii) hear additional evidence at the
request of a party; and (iii) grant relief as it deems appropriate based upon the
preponderance of the evidence. 20 U.S.C.A. 1415(i)(2)(A), (2)(C).
A courts authority to grant relief under the Act includes the power to order
school authorities to reimburse parents for their expenditures on private school
education for a child if the court ultimately determines that such placement, rather
than a proposed IEP, is proper under the Act. Pihl, 9 F.3d at 188 (quoting School
Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 369
(1985)).
B.

STANDARD AND SCOPE OF REVIEW

The district court reviews the hearing officers decision based on a

preponderance of the evidence standard. 1415(i)(2)(C), supra; D.B., 675 F.3d at 3536. The burden of proof rests on the party challenging the hearing officers decision.
Hampton School District v. Dobrowolski, 976 F.2d 48, 54 (1st Cir. 1992). [T]he
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. Board of
Educ. of Hendrick Hudson Central School Dist., et. al. v. Rowley, 458 U.S. 176, 206
(1982). The requirement that a reviewing court must receive the records of the
administrative proceedings implies that due weight shall be given to those
proceedings. Rowley at 206 (quotation omitted). Judges are not trained
446

pedagogues, and they must accord deference to the state agencys application of
specialized knowledge. Lessard, 518 F.3d at 24 (citing Gonzalez v. P.R. Dept. of
Educ., 254 F.3d 350, 352 (1st Cir. 2001)) (other citations omitted). Therefore, judicial
review falls somewhere between the highly deferential clear-error standard and the
non-deferential de novo standard. Id. (citing Roland M., 910 F.2d at 989).
C.

ADEQUACY AND APPROPRIATENESS OF THE IEP

An IDEA appeal presents two questions: the first is whether a particular school

district complied with the procedures set forth in the Act, and the second is whether
the IEP developed through the Acts procedures was reasonably calculated to enable
the child to receive meaningful educational benefits. Rowley, 458 U.S. at 206-07;
D.B., 675 F.3d at 34-35. In this case, there does not appear to be any dispute over
Portlands compliance with the IDEAs procedural requirements. Therefore, my
analysis will focus on SDs substantive objection to the IEPs developed for HV in his
fifth, sixth, and seventh grade years.
In Town of Burlington v. Department of Educ. for Com. of Mass., 736 F.2d 773,
788 (1st Cir. 1984), the First Circuit identified certain basic guidelines for
determining the adequacy of an IEP, among these being the achievement of effective
results and demonstrable improvement in the educational and personal skills
identified as special needs. The First Circuit subsequently clarified in Roland M.
that while actual education results are relevant to determining the efficacy of
educators policy choices, parties nevertheless should not confuse what is relevant
with what is dispositive. 910 F.2d at 991 (emphasis in original). Although [a]ctual
educational progress can (and sometimes will) demonstrate that an IEP provides a
[free, appropriate public education] . . . impos[ing] the inverse of this rulethat a lack
447

of progress necessarily betokens an IEPs inadequacywould contradict the

fundamental concept that an IEP is a snapshot, not a retrospective. Lessard, 518
F.3d at 29 (quoting Roland M., 910 F.2d at 992). The issue is not whether the IEP
was prescient enough to achieve perfect academic results, but whether it was
reasonably calculated to provide an appropriate education as defined in federal and
state law. Roland M. at 992.
In addition to developing an IEP that is reasonably calculated to provide
meaningful educational benefits, D.B. at 34-35, a school district is required to
implement the IEP in accordance with its requirements. Doe ex rel. Doe v. HampdenWilbraham Regional School Dist., 715 F.Supp.2d 185, 195 (D. Mass. 2010) (citing 20
U.S.C. 1401(9)(D)). Although perfect implementation is not necessarily required,
courts have found that the failure to implement a material or significant portion of
the IEP can amount to a denial of [a free, appropriate public education]. Sumter
County School Dist. 17 v. Heffernan ex rel. TH, 642 F.3d 478, 484 (4th Cir. 2011). See
also Van Duyn ex rel. Van Duyn v. Baker School Dist. 5J, 502 F.3d 811, 822 (9th Cir.
2007) (a material failure to implement an IEP violates IDEA.).
D.

REMEDIES
Under the IDEA, the court has the power to grant such relief as [it]

determines is appropriate. 20 U.S.C. 1415(i)(2)(C)(iii). [B]y empowering the court

to grant appropriate relief Congress meant to include retroactive reimbursement to
parents as an available remedy in a proper case. Burlington, 471 U.S. at 370; see
also Rafferty v. Cranston Public School Committee, 315 F.3d 21, 26 (2002).
Reimbursement is not damages, but rather payment of expenses that [the school]
should have paid all along and would have borne in the first instance had it developed a
448

proper IEP. Id. at 37071. [C]ompensatory education is not an automatic

entitlement but, rather, a discretionary remedy for nonfeasance or misfeasance in
connection with a school systems obligations under the IDEA. C.G. v. Five Town
Cmty. Sch. Dist., 513 F.3d 279, 290 (1st Cir. 2008). A school districts responsibility
for compensatory educational services does not depend on the vigilance of the parents,
see, e.g., Maine Sch. Admin. Dist. No. 35 v. Mr. R., 321 F.3d 9, 20 (1st Cir. 2003) (called
into doubt on other grounds by Boston Childrens First v. City of Boston, 395 F.3d 10,
15 (1st Cir. 2005)). Nor does it depend on a finding that the school district acted in
bad faith or egregiously, see, e.g., M.C. ex rel. J.C. v. Central Regl Sch. Dist., 81 F.3d
389, 397 (3d Cir. 1996). Rather, a student who fails to receive appropriate services
during any time in which he is entitled to them may be awarded compensation in the
form of additional services at a later time. Pihl, 9 F.3d at 187.
III. ANALYSIS
A.

Fifth Grade (2010-2011)

The hearing officer concluded that HVs fifth grade IEP was appropriately

drafted and that it contained the essential elements of personalized instruction in

the areas of need, support services, present levels of performance, measurable annual
goals, methods by which progress towards those goals [could] be measured, and an
explanation of the extent to which [HV] would participate with non-disabled
students. R. 2571. The hearing officer also found that HV had benefitted from the
IEP. R. 2572. Although she recognized that HV was not progressing as fast as his
non-learning disabled peers, she nevertheless concluded that this was an
understandable reflection of his complicated disability, explaining that, [i]t is
therefore no surprise that [HV] had difficulty making greater progress than he made.
449

Id. She concluded that HV had received a meaningful educational benefit for his
fifth grade year. Id.
SD challenges the hearing officers conclusion and highlights three points of
contention. First, SD argues that Portlands singular reliance on the Wilson Reading
Program to

remediate HVs significant and complex

literacy deficits

was

inappropriate because HVs evaluation results demonstrated that he had problems

both with phonics and with visual memory, making Wilson an inappropriate choice
for him at the outset. ECF No. 22 at 18 (emphasis in original). SD claims that
Wilson was an off-the-rack programming selection which violated the IDEAs
requirement that programming be tailored to meet the unique special needs of
students. Id. at 19 (emphasis in original).
Secondly, SD argues that the hearing officer did not address Portlands alleged
failure to include programming or supports to manage HVs anxiety, and claims that
this omission violated the IDEAs requirement that schools address both academic
achievement and functional performance. Id. at 19.
Finally, SD argues that Portland failed to properly implement HVs fifth grade
IEP because Cynthia Johnson admitted to allowing HV to progress in the Wilson
program whenever he achieved 90% proficiency on a given level, instead of requiring
him to meet 100% proficiency. Id. at 20-21.
The hearing officer adequately addressed each of SDs arguments in her ruling,
citing evidence in the record to support her conclusions. With regard to the
appropriateness of the Wilson program, she noted that [t]here was no dispute among
the various experts . . . including Dr. Kaufman, Dr. Etzweiler, and Ms. Boulos, that
Wilson was an appropriate reading program for [HVs] needs. R. 2571.
450

Insofar as HVs school-related anxiety was a problem in the fifth grade, the hearing
officer noted that [t]he assistant principal and other school officials dealt with [HVs]
problems interacting with a few of his peers, and [SD] enthusiastically thanked Mr.
Turner for his work. [HVs] peer problems did not appear to interfere with his
learning. R. 2573. Finally, with regard to Cynthia Johnsons practice of advancing
HV to the next Wilson level upon meeting 90% proficiency instead of 100%
proficiency, the hearing officer noted that Ms. Boulos observed Ms. Johnson working
with [HV] and did not report seeing anything wrong with her teaching methods, and
[t]here was no evidence that Ms. Johnsons approach to delivering [HVs] program
amounted to a deprivation of [a free, appropriate public education]. R. 2572.
Furthermore, the hearing officer cited Dr. Kaufmans testimony that although [he]
acknowledged that [HV] had difficulty holding onto the progress he made . . .
[Kaufman] did not know what to attribute this to, other than [HVs] working memory
and long-term memory problems. Id.
In short, the hearing officers resolution of these issues is supported by the
evidence. SDs objections, although understandable from the point of view of a
concerned parent, are precisely the sort of invitation to substitute the courts own
notions of sound educational policy in place of the school administrators, which the
Rowley court explicitly warned against. See Rowley, 468 U.S. at 206. Accordingly,
the hearing officers ruling with regard to HVs fifth grade year is AFFIRMED.
B.

Sixth Grade (2011-2012)

In her analysis of HVs sixth grade year (2011-2012), the hearing officer

focused on the problematic implementation of the IEP, noting that, while the IEP
appeared to contain the essential elements required by law, HV did not work well
451

with his Wilson program instructor, Ms. Scally, and made only minimal progress in
reading during the sixth grade. R. 2573.
The hearing officer attributed the poor implementation of the IEP both to
Portland and to SD. Apportioning some of the blame to Portland, she found fault
with the School Districts unilateral decision to reduce HVs 1:1 reading instruction
time to four 50-minute sessions per week, instead of the five sessions per week which
were required by the IEP. R. 2547; 2575. She concluded that this was certainly a
factor in [HVs] slow progress in the sixth grade and constituted a deprivation of a
free, appropriate public education. R. 2575.
The hearing officer apportioned a greater amount of blame for HVs lack of
progress to SD, citing her demanding, blaming, and insistent attitude. R. 2574.
She concluded, for example, that SD obstructed delivery of services under the IEP
by choos[ing] to have [HV] receive half of the Wilson instruction called for in the IEP
rather than drop band at the beginning of the academic year. R. 2574. She also
cited SDs decision in January 2012 to have HVs teacher stop work on the Wilson
reading curriculum in favor of working with HV on missed schoolwork. Id. She found
that SDs insistence on 1:1 instruction for HV in the Wilson and System 44 programs
delayed HV from starting and benefitting from System 44. Id. She criticized SD
for dismissing the System 44 program as a waste of time; found that SD pulled HV
out of many classes because she did not like his teachers; and noted that SD refused to
deal with HVs guidance counselor after the counselor suggested that HV was
responsible for some of his problems with his peers. Id. at 2574-75.
The hearing officers remedy reflected her conclusion that SD shouldered more
blame than the School District. She ruled that HV was entitled to reasonable
452

compensation from the School District for receiving only four days of individualized
instruction per week instead of five. R. 2580. However, she limited the compensation
award because [m]uch of [HVs] lack of progress was due to [SDs] decisions, and it
does not seem fair to penalize Portland for its many efforts to try to appease [SD] by
changing [HVs] program at her request. . . . See R. 2580.
I disagree with the hearing officers conclusion in two key regards. First, the
hearing officer overstated SDs culpability for the ineffective implementation of HVs
sixth grade IEP. Secondly, the School Districts failure to provide a free, appropriate
public education was a result of an inappropriately-drafted IEP, and thus extends
beyond its failure to provide individualized reading instruction for a full five days per
week. I discuss each issue in more detail below.
1. The Hearing Officer Overstated SDs Culpability
In characterizing SD as having chosen for HV to receive half of his allotted
Wilson instruction rather than drop band, the hearing officer unfairly glossed over
Portlands inability to accommodate HVs reading instruction at any time other than
his scheduled band class, thereby apportioning all the blame to SD. Although the
final decision may have been SDs, it was Portland that presented her with the two
unsatisfactory options of either reducing HVs reading instruction or having him drop a
class in which he enjoyed rare scholastic success. See ECF No. 22 at 6-7. Thus, the
record does not support the bald conclusion that SD unilaterally chose to reduce
HVs reading instruction by half.
Furthermore, SDs decision to allow HV to continue participating in band is
reasonable when one considers the fact that she believed HV to be reading at Wilson

453

level 7, and was unaware that Ms. Scally had determined that HV had some holes
in his knowledge which were significant enough to drop him to level 2. R. 2546-47.
The fact that SD did not learn about this setback from Ms. Scally or another school
official when it happened, but instead learned about it a couple of months into the
school year from HV himself, R. 2630, makes SDs decision to allow HV to continue
in band until late October more understandable, and casts SDs subsequent
aggressive advocacy in a more reasonable light.
The hearing officer also blamed SD for her insistence on 1:1 instruction in the
Wilson and System 44 programs after the March 6 IEP meeting, even though this
delayed [HV] from being in and benefitting from the System 44 program. R. 2574.
However, this conclusion fails to recognize that HVs sixth grade IEP explicitly stated
that [HV] requires individualized, specially designed instruction to make progress
on his IEP. R. 1027 (emphasis added). Thus, SD was demanding nothing that
Portland was not already required to provide. The same is true regarding the
criticism of SD for deciding that System 44 was a waste of time. R. 2575. The
hearing officer noted that all of SDs complaints about how the program was
administered ([either] the computer doesnt work, the teacher is out sick, the library
door is locked, and on and on) were problems that did not exist when [HV] had
System 44 delivered in the group with Ms. Galli, which was the way the program
would have been delivered, had [SD] not insisted it be done her way. Id. at n.14
(citing R. 499). Again, this conclusion fails to acknowledge the fact that HVs sixth
grade IEP required individualized instruction, that SD had a good reason for raising
this issue, and that she was not simply insisting on having things her way. See R.
1027, supra.
454

Finally, the hearing officers conclusion that SDs decisions . . . were certainly a
significant factor in [HVs] lack of progress during the months of September,
October, February, and March, R. 2575, overstates what the weight of the evidence
shows, insofar as some of SDs decisions, as discussed supra, were either not
detrimental (insisting upon the 1:1 instruction that was already called for in the IEP),
not as significant as the hearing officer suggested (referring to System 44 as a waste of
time), or not properly characterized solely as SDs decision (choosing between
reducing reading instruction or dropping music education).
2. Portland Failed to Provide a Free, Appropriate Public Education
In addition to providing HV with only four of the requisite five 50-minute
sessions of Wilson instruction per week called for by his IEP, additional facts in the
record lead me to conclude that Portland shoulders a greater degree of responsibility
for HVs lack of progress in the sixth grade than the hearing officer apportioned.
HVs sixth grade IEP was drafted with the understanding that he was reading
at Wilson level 7, when in fact he was reading at Wilson level 2. R. 2544. Yet Portland
failed to investigate the cause for HVs decline after the beginning of the 2011-2012
academic year, when Maryanne Scally determined that HV was reading only at level 2
in the Wilson program. The evidentiary record shows that Ms. Scally told Deb
Mullis about HVs precipitous drop in Wilson levels shortly after she discovered it,
and duly reported that I was going to work in level 2 and everyone seemed to be in
agreement that that was fine. R. 2808. Without such an investigation, Portland was
operating in the dark and did not know whether HVs decline was the result of a

455

failure by Cynthia Johnson, HVs fifth grade reading instructor, to follow the
Wilson program; the result of HVs increased anxiety and maladaptive
coping mechanisms; the result of his memory retention deficit; or the result
of faulty administration of Wilson tests in arriving at a determination of his
proficiency. Because HVs IEP was formulated with the assumption that he
was reading at Wilson level 7, the discovery that he was actually reading at
level 2 should have triggered a reevaluation of HVs sixth grade IEP. The
fact that this did not happen leads me to conclude that the IEP was not
properly implemented almost from the beginning of the academic year, and
the failure to reconsider it in a timely manner resulted in the denial of
a free, appropriate public education. See Springfield School Committee v.
Doe, 623 F.Supp.2d 150, 161 (D. Mass. 2009) (failure to reevaluate IEP
constituted denial of a free, appropriate public education). See also Sumter
County School Dist. 17, 642 F.3d at 484. See also Doe ex rel. Doe, 715
F.Supp.2d at 195.
Accordingly, the hearing officers determination that Portland
provided HV
with a free, appropriate public education during his sixth grade year (20112012) is VACATED. I address the proper remedy for this denial of a free,
appropriate public education, infra.
C.
Seventh
(2012-2013)

Grade

IEP
456

The hearing officer concluded that HV could have received the

programming necessary to provide him with a free, appropriate public
education in the seventh grade, citing Dr. Kaufmans testimony that he
could not say that Portland had fallen short on its programming obligations.
R. 2576 (citing R. 2609). She also cited

Kaufmans testimony regarding System 44, which was the proposed focus
of HVs seventh grade reading instruction. Kaufman described System 44
as a reasonable program for HV despite the fact that it was not
multisensory: many of us in this business recommend multisensory,
synthetic, systematic phonics programs because they are so successful for so
many kids but System 44 . . . can be very successful too in [its] own way[]. . .
. R. 2607.
SD argues that the hearing officers conclusion should be reversed
as indefensible because the seventh grade IEP would have provided HV
with only a small-group regular education class using the System 44
program and its de- emphasis on individualized services. ECF No. 22 at
32. SD also asserts that the hearing officers description of System 44 as
an evidence-based, highly structured reading program with a high degree of
consistency is misplaced. Id.
457

I conclude that the hearing officers ruling with regard to HVs

proposed seventh grade IEP is supported by the evidence, as she relies
upon Dr. Kaufmans testimony to support her conclusions about System 44
and its appropriateness for HV. SDs assertions about the program, while no
doubt sincerely held, simply do not have the same support in the record.
Accordingly, I conclude that Portlands proposed IEP and placement offer for
HVs seventh grade year (2012-2013) was an appropriate plan for educating
HV. The hearing officers decision on this point is therefore AFFIRMED.
D.

Remedy
As stated above, under the IDEA, the court has the power to grant

such relief as [it] determines is appropriate. 20 U.S.C. 1415(i)(2)(C)(iii).

Among these

remedies is compensatory education, or the retroactive reimbursement to

parents for their expenditures on private school education for a child. Pihl,
9 F.3d at 188. Such reimbursement represents a payment of expenses that
the school would have borne in the first instance had it developed a proper
IEP. Burlington, 471 U.S. at 370-71.
Because I vacate the hearing officers decision with regard to HVs sixth
grade year (2011-2012) and conclude that HV was denied a free, appropriate
public education, I also conclude that SD is entitled to an award of
compensatory education for the expenses she incurred in enrolling HV in
458

the Aucocisco School during the 2012-2013 academic year, minus the
amount the hearing officer already awarded for HVs attendance at
Aucociscos six-week summer program and for the two-week literacy
tutoring and transportation costs. R. 2581 at 3.
IV. CONCLUSION
The parties shall confer and determine whether they can stipulate
to the amount of the award necessary to conform with the remedy stated
above. If the amount is stipulated to, the parties shall file a joint
memorandum advising the court of the award amount (i.e., the cost of HVs
tuition at the Aucocisco School for the 2012- 2013 academic year, minus the
amount the hearing officer previously awarded), within 14 days of the date
of this order. If the parties cannot agree, each shall file a memorandum,
which shall not exceed five pages, setting forth their positions within 14 days
of this order.
Additionally,

the

parties

shall

file

memoranda

and

any

accompanying affidavits addressing the potential award of attorneys fees

and costs. SD shall file her memorandum and accompanying affidavits
within 14 days of the date of this order. Portlands response and SDs reply,
if any, shall be filed thereafter in conformance with Local Rule 7.
SO ORDERED.
DATED THIS 19th DAY OF SEPTEMBER, 2014
/s/ JON D. LEVY
459

UNITED STATES DISTRICT

JUDGE

460

STATE OF MAINE
SPECIAL EDUCATION DUE PROCESS HEARING
Hearing #14.054H
Parent, individually and
as parent and legal
guardian of Child,
a minor
v.

)
)
)
)
)
)
)

ORDER

Falmouth School
Department
This decision is issued pursuant to Title 20-A M.R.S.A. 7202 et seq., Title 20 U.S.C.
1415 et seq., and accompanying regulations. A due process hearing was held on
September 5, 8, 9 and 12, 2014 in Portland, Maine. Present and participating throughout
the hearing were: Parent; Richard OMeara, Esq., attorney for the Parent; Eric Herlan,
Esq., attorney for the Falmouth School Department; Penny Wheeler-Abbott, consultant at
Drummond Woodsum; Gene Kucinkas, Director of Special Services, Falmouth School
Department; and David Webb, Esq., Hearing Officer. Caitlin Wright, Associate at Murray
Plumb & Murray and Melanie Frazek, Esq., Due Process Hearing Officer observed the
hearing. Pauline Lamontagne, Education Specialist III with the Department of Education,
Observed the hearing on September 9, 2014.
Witnesses:
The Students Mother;
Christopher Kaufman, Ph.D., Psychological Evaluator;
Gretchen Jefferson, Ph.D., Behavioral Evaluator;
Kathleen Coffin, Lindamood Bell Tutor;
Gene Kucinkas, Director of Special Services, Falmouth School Department;
Kim Mosca, Special Education Teacher, Falmouth Elementary School; and,
Beth Weller, Speech Therapist, Falmouth Elementary School.
461

All witness testimony was taken under oath

I. PROCEDURAL BACKGROUND
On June 13, 2014 the Parent filed a due process hearing request on behalf of her daughter,
(Student). On August 11, 2014, a prehearing conference was held in Portland, Maine.
Documents and witness lists were exchanged in a timely manner. A prehearing conference
was held with the Hearing Officer, counsel and parties on August 27, 2014. A Prehearing
Report and Order was issued by the Hearing Officer on August 12, 2014. On August 27,
2014, the Prehearing Report and Order was amended by agreement of the parties thereby
adding the following additional issue:
Whether the Students claims under the IDEA for the period between September
1, 2013-December 17, 2013 were waived as a result of the Parents signing a Due
Process Hearing Withdrawal Request Form on December 17, 2013.
All parties agreed that evidence on this issue would be offered within the regularly
scheduled hearing dates and counsel would brief the issue in post hearing memoranda. It
was also agreed that the Hearing Officer would incorporate his ruling on this issue and any
related damages in this order.
The Parent distributed 653 pages of documents (herein referenced as P-#) and the District
distributed 1,355 pages of documents (herein referenced as S-#) at the prehearing
conference and at the hearing with the agreement of the parties. Following the hearing,
both parties requested to keep the hearing record open until September 29, 2014 to allow
the parties to prepare and submit closing arguments due on September 22, 2014 and reply
briefs by September 29, 2014. Pursuant to a post hearing order issued on September 16,
2014, the initial closing arguments were limited to a maximum of 35 pages and reply
462

briefs to a maximum of 10 pages.

The District submitted a 27-page final argument memorandum and the Parent submitted a
35-page final argument memorandum. The record closed upon receipt of the reply briefs
on September 29, 2014. The parties further agreed that the hearing officers decision
would be due on October 14, 2014.
II. ISSUES: Evidence was taken on the following issues:
6. Did the District fail to provide the Student with a free appropriate public education
(FAPE) and placement in the least restrictive environment during the 2013-2014
academic year?
7. Did the District violate the Students rights under the IDEA by not providing a
Functional Behavior Assessment for the Student during the 2013-2014 academic
year?
8. If the answer to either 1 or 2 above are yes, what changes, if any, are necessary to
the Students IEP to ensure that she receives a FAPE in the least restrictive

environment during the 2014-2015 academic year?

9. If the answer to either 1 or 2 above are yes, is the Parent entitled to reimbursement
of her costs associated with the Lindamood Bell literacy tutorials or is the Student
entitled to any other remedy under the special education laws?
10. Are the Students claims under the IDEA for the period between September 1,
2013-December 17, 2013 waived as a result of the Parents signing a Due Process
Hearing Withdrawal Request Form on December 17, 2013.

V.

FINDINGS OF FACT
79. The Student is X years old (d.o.b. XX/XX/XX) and resides with her mother in
Falmouth, Maine. She is beginning her X grade year at Falmouth Elementary
School. [Parent Testimony]
80. The Students mother (Parent), is a certified special education teacher with
experience instructing students with disabilities in both Florida and Maine.
[Parent Testimony]
81. The Student has been diagnosed with Down Syndrome, has an intellectual
463

disability as well as Attention Deficit Hyperactivity Disorder. [S-514; Kaufman

testimony] She is currently eligible for special education and related services
under the category of multiple disabilities, reflecting an intellectual disability and
other health impairments. [S-l89]
82. The Student began speech-language therapy through Child Development
Services (CDS) when she was six months old and communicated only through
American Sign Language until age four. [Parent testimony]
83. The Student attended the Lunt School in Falmouth for kindergarten (2010-2011)
and was found eligible for special education services under the category of Other
Health Impairment. [P-26] The Individualized Education Program (IEP) team
determined that the Student would receive 11.5 hours per week of direct
instruction, and two hours each per week of speech/language services,
occupational therapy and physical therapy. [P-26]
84. In November 2010 the Students direct instruction services were reduced to 6.5
hours per week, physical therapy was reduced to one and a half hours per week,
with the addition of 30 minutes per week of adaptive physical education and
consultation with a speech/language pathologist. [P-48]
85. The Student attended first grade at Falmouth Elementary School (2011-2012).
[Parent testimony] The IEP team met in November 2011 and determined that the
Student would receive 10.5 hours per week of direct instruction, 1.5 hours per
week of physical therapy, 2 hours per week of occupational therapy and 2 hours
per week of speech/language therapy. [P-104] The IEP also included 30 minutes
per week of adaptive physical education and speech/language consultation. [P104]
464

86. The IEP team met on June 6, 2012, and reduced the Students pull out services to
promote opportunities for the Student to participate with her peers as much as
possible. [P-131] The IEP team determined that the Student would receive 10.5
hours per week of direct instruction, 1.5 hours per week of physical therapy 2
hours per week of occupational therapy and 30 minutes per week of in-class
speech/language therapy. [P-131] It was further determined at the June 6, 2012
meeting that no extended year services (ESY) would be provided as the Parent
planned to have the Student attend Camp Senter, a mainstream camp program.
[P-131]
87. The Student began second grade in September, 2012. [Parent Testimony] Her
special education teacher was Rachel Roberts and her general education teacher
was Carol Daigle. On November 7, 2012, the Students IEP was modified
without a team meeting by adding an additional physical therapy goal for the
Student. [S-1349]
88. At the time of the November 7, 2012 IEP meeting, the Student was reported to be
reading at level 8 on the Developmental Reading Assessment (DRA) scale. [P156] The team set three annual reading goals: mastering final e endings,
mastering consonant blends with 90% accuracy, and attaining Level 16 (mid-first
grade) on the DRA by November 2013. [P-158] It also approved a token-based
behavior plan. [P-176]
89. In late November 2012, the Parent emailed the Students teachers to express her
concern with the Students reading instruction. [P-177].
90. On February 26, 2013, the IEP team met and determined that the Students
specially designed reading instruction would increase to a total of 1 hour daily
465

and specially designed math instruction would increase to a total of 45 minutes

daily. [S-1345] The team also determined that the Students re-evaluation testing
would occur within 45 school days. [S-1345]
91. Jayne Boulos, the Districts School Psychologist, evaluated the Student as part of
her triennial evaluation at the end of second grade. She reported that the
Students cognitive scores dropped from when she was four year old, and that her
scores were in the extremely low range. [S-6] She noted that this was not
surprising given the task demands on the assessments, and that her innate skill
can no longer always be enough. [S-6] Ms. Boulos recommended academics
taught at the Students level and progress monitoring, direct social skills training
and positive behavioral supports. [S-6].
92. Rachel Roberts, the Students Special Education Teacher, also administered
academic assessments as part of the Students triennial evaluation. [S-7] Ms.
Roberts noted that the Students test scores on the Phonological Awareness Test
were below average, but that she was developing in her phonologic skills. [S-9]
The Students score on the Test of Early Written Language-3 has a below
average score of 81. Her score on of Early Reading Ability-3 score of 72 was in
the 3rd percentile. [S-11] Ms. Roberts concluded that the Students scores were
not surprising, given that she requires much support, repetition, supplemental
aids and prompts. [S-12]
93. Susan Christy, a Speech/Language Pathologist with the District, also evaluated
the Student in the spring of 2013 and concluded that the Student has a good
understanding and use of basic vocabulary and recognizes word relationships
and general critical features with which to determine word relationships. [S-19]
466

Ms. Christy reported that the Student made significant gains in her expressive
language skills and that she is able to state similarities but requires cues to
understand the more critical thinking skill of determining how words differ
semantically. [S-20]
94. The IEP team met on May 14, 2013 following the Students triennial evaluations
in April and May 2013. [S-30] The IEP team determined that the Student would
receive ESY services 2 times per week for 3 hours and Occupational Therapy and
Speech Language Services 2 times per week for 30 minutes. [S-31]
95. The Student did not access the 2013 ESY programming offered by the District.
[Parent Testimony]. Instead, the Parent privately enrolled the Student in the
Bates College Summer Reading Program, which met for 2 hours, once a week,
for 6 consecutive weeks. [Parent Testimony]
96. In September, 2013, the Student started her third grade at Falmouth Elementary
school with a new educational team. Her regular education teachers included Ms.
Coppinger and Ms. Palmer. [S-189] Beth Weller was the Students speech
pathologist. Her special education teacher was Kim Mosca, who also served as the
Students case manager and literacy instructor. [S-189] The Students math
instruction was delivered by Megan Huckins. [S-189]
97. The Students reading levels were documented using the DRA level system
which is correlated to student grade levels. [Mosca testimony; S-192] DRA level
8-16 is within the 1st grade level. [Kucinkas Testimony] The levels were
distinguished between able to read with minimal support and able to read with
support [Mosca testimony] The labeling of DRA of books is usually done not by
teachers but specialists. [Kucinkas Testimony]
467

98. An IEP meeting was held on October 3, 2013 to discuss parental concerns. [S-96]
As a result of this meeting, the Students physical therapy was reduced by 20
minutes per week. 10 minutes per day of Educational Technician (Ed Tech)
support was added to the Students IEP to work on sensory tools. [S-98] The
District also proposed a structured reading program for the Student. [S-99]
99. At an IEP team meeting on October 31, 2013, the Students DRA level for her
ability to read with minimal support was determined to be at a level 8, while her
instructional level was determined to be at a level 10. [S-189]
100.

At the October 31, 2013 IEP meeting, the team included a social skills goal

and determined that the Student would receive 8 hours and 45 minutes per week
in specially designed instruction in literacy and math. [S-226] The team also
determined that the Student would receive 60 minutes per week of physical
therapy, 2 hours per week of occupational therapy (1.5 in special education
classroom and .5 in the regular classroom), 2 hours per week of speech therapy
(1.5 in special education classroom and .5 in the regular classroom), 30 minutes
per week of social skills activities and weekly participation in a lunch-time
friendship group with her guidance counselor. [S-189; S-154-155]
101.

The Students literacy instructional goals were established at the IEP team

meeting held on October 31, 2013. [Mosca testimony; S- 221 S-225] The
Students DRA reading goal was set at level 16, the reading goal from her prior
IEP. [S-216; S-224]
102.

In a Written Notice dated October 31, 2013 and sent to the Parent on

November 5, 2013, the District proposed that the Student receive 60 minutes per
day of reading instruction in Spire [sic]. [S-155]
468

103.

SPIRE is a teacher directed, systematic, multisensory, synthetic phonics

literacy instructional program developed by Orton-Gillingham. [Kaufman

testimony; S- 515] The Students literacy teacher, Kim Mosca, was not trained in
SPIRE at the time of the Written Notice, and did not receive SPIRE training until
August 2014. [Mosca testimony]
104.

On November 5, 2013, the Parent filed a due process hearing request. [S-

319] Her amended complaint, dated December 2, 2013, included the following
allegations: 1) Lack of effective instruction from [School Year] 2011 to present..
due to non-evidenced based instructional programsdemonstrated by lack of
progress; 2) Lack of effective programming and scheduling; 3) Lack of trained
staff; 4) Lack of staff training in inclusion and Down syndrome; 5) Failure to
complete accurate evaluations 6) Failure to provide the Student with a gluten-free
lunch; and 7) Failure to apply the appropriate diagnostic criteria for the Student.
[S-319]
105.

In a letter dated November 14, 2013, the Parent wrote to Mr. Kucinkas and

Polly Crowell (the Districts co- director of Special Education) stating that she
was not in agreement with the proposal to use the SPIRE reading program for the
Student. [Parent testimony, S-269] In particular, the Parent was concerned that
SPIRE was not evidenced based because there was no objective research
proving that it could help the Student. [Parent testimony, S-269]
106.

Mr. Kucinkas and the Parent met on December 13, 2013, and reached an

agreement, as documented in Mr. Kucinkass letter dated December 12, 2013. [S335] The terms of the agreement included 1) Use of a daily communication
sheet; 2) A weekly e-mail from the Students case manager; 3) A monthly
469

meeting among Ms. Mosca, Mr. Kucinkas, and the Parent; 4) An evaluation by
Dr. Kaufman; 5) The previously promised AT evaluation; 6) The previously
promised consultation by Dr. Jefferson; 7) A reading of determinations at the end
of IEP Team meetings; and 8) A promise to provide written notice 7 days prior to
implementation. [S-334] Mr. Kucinkas noted at the end of this letter that the
Parent said that based upon this agreement, you have said that you would
withdraw your current due process hearing. [S-335] There was no discussion
between Mr. Kucinkas and the Parent regarding the Students SPIRE program.
[Kuncinkas testimony]
107.

On December 17, 2013, the Parent signed a Hearing Withdrawal Request

form, drawing a box and placing a checkmark next to a paragraph that stated
With Prejudice All hearing issues were settled in a written Resolution or
Mediation Agreement. [Parent Testimony, S-351]
108.

The Parent testified that she chose this option on the form because it gave

her what she needed and she didnt want a hearing in January as she was too
busy with the holidays. [Parent Testimony] The Parent testified that it was not
her intent to release her past claims against the District. [Parent Testimony]
When the Parent signed the hearing withdrawal form she did not disclose to the
District that she was reserving the right to file for claims prior to the date she
signed the form. [Parent Testimony]
109.

While the Parent was not represented by counsel at the time she signed the

withdrawal, she had recently worked with an advocate who had provided advice
on other matters. [Parent testimony]
110.

Gene Kucinkas testified that the District did not take steps to put SPIRE in
470

place for the Student after the October 31, 2013 IEP team meeting since the
Parent informed the District that she was not in agreement to use SPIRE.
[Kucinkas testimony; S-261-269]
111.

Kim Mosca testified that she did not use the SPIRE program with the

Student, but provided daily literacy instruction to the Student using level system
books, the Wilson FUNdamentals fluency program, and Lexia, a computer-based
phonics program. [Mosca testimony]
112.

Ms. Mosca kept records of the Students reading on daily instruction sheets,

which she sent home to the Parent each day. [Mosca testimony; S-B4-B60] These
instruction sheets documented a structured literacy instruction format involving
predictability with characters, decoding texts, pictures and grammar sequencing.
[Mosca testimony] After the Student read the text, Ms. Mosca highlighted errors
with the Student. [S-1043; Mosca testimony]
113.

The Student utilized the Lexia reading program to work on her segmenting,

consonants, vowels and medial word skills. [Mosca testimony]. The Student
was not able to use Lexia independently because she was distractible. [Mosca
testimony]
114.

Beth Weller, the Students Speech/Language Pathologist testified that she

worked with the Student for three 30 minute pull out speech sessions per week.
[Weller testimony] For two of the sessions she worked with the Student on a 1:1
basis, and one of the sessions was with two other students. [Weller testimony]
Ms. Weller also worked with the Student on social pragmatics and reciprocal
communication skills. [Weller testimony] Ms. Weller testified that she worked
with the Student on the goals established in her IEP, including speech sounds,
471

syllables, accuracy, verbal expression, multiple definition words, initiating and

using follow-up questions, word endings and expression of concepts. [Weller
testimony; S-195-198] As part of the Students Speech/Language consultation,
Ms. Weller met weekly with other staff order to coordinate and reinforce the
Students literacy skills and training. [Weller testimony] Ms. Weller testified
that communication between team members was excellent. [Weller testimony]
115.

The Students articulation goal, cited in her October 31, 2013 IEP, was to

achieve 80% accuracy in 8/10 sessions. [S-194] Ms. Weller testified that the
Student made decent progress with her articulation goal, where she was able to
achieve 80% accuracy in 4/10 sessions by March 28, 2014. [S-1139] Ms. Weller
noted that, although it was clearly difficult for the Student, she felt that the
Student had a beneficial year and made reasonable progress. [Weller testimony]
116.

Ms. Weller testified that she is familiar with both the LiPS and SPIRE

literacy programs. [Weller testimony] She explained that SPIRE offers a

comprehensive reading program that uses phonological awareness concepts
including vocabulary, comprehension, encoding, spelling, phonemic and fluency.
[Weller testimony] She further noted that although SPIRE works on a different
use of mouth than the LiPS program, there are lots of ways to develop
phonemic awareness skills with students and that the Student is ready for SPIRE.
[Weller testimony]
117.

Ms. Mosca wrote an e mail to the Parent on January 10, 2014, noting that

the Student was reading at a DRA level 13. [S-356] Ms. Mosca also reported
that there were two incidents that involved the Student hitting other students
during the week, which she believed were mostly attention seeking and not
472

vindictive behaviors. [S-356]

118.

Dr. Gretchen Jefferson, Behavioral Evaluator, was retained by the District

in January, 2014 to conduct a program evaluation to inform planning for

increasing [the Students] engagement and productivity during general education
activities and to determine whether her time in the general education classroom
can be increased [S-482]
119.

As part of her evaluation, Dr. Jefferson interviewed school staff and the

Parent, and observed the Student working on her specially designed literacy
program with Kim Mosca on January 16 and 17, 2014. [S-482; Jefferson
testimony] During this observation, Dr. Jefferson testified that the Student
seemed to know what was expected, was oriented to the instruction,
demonstrated accuracy of 80% and no apparent loss of instructional time or the
Students engagement during the 70 minute session. [Jefferson testimony] Dr.
Jefferson noted that the Student was engaged in both pull-out and mainstream
programming, however she reported that at recess the Student seemed isolated
and did not actively engage with her peers. [Jefferson testimony]
120.

The Student participated in a social skills program from 8:45 a.m. to 9:00

a.m. on Tuesdays and Thursdays, however she occasionally missed these

programs due to her late arrival at school. [P-234, 235; Mosca testimony]
121.

Dr. Jefferson opined that based on her observations the Districts program

was excellent and that the team was making it work. [Jefferson testimony]
She noted, however, there were areas within the program where it could be more
efficient. [Jefferson testimony] Dr. Jeffersons findings and recommendations
were documented in a program evaluation report dated March 18, 2014. [S-482]
473

122.

Dr. Jefferson also noted no observations or incidents of the Student having

significant behavior issues or being disregulated as she was gathering

information for her March 18, 2014 report. [S-482; Jefferson testimony]
123.

In January 2014, Dr. Kaufman was hired by the District to evaluate the

Students neurodevelopment including memory, language, visual spatial and

sensory/motor functioning. [Kaufman testimony] Dr. Kaufman understood that
the parties had agreed to use him as the evaluator of the Student. [Kaufman
testimony]
124.

Dr. Kaufman evaluated the Students academic functioning using the

Wechsler Individual Achievement Test, the Wilson Assessment of Decoding and

Encoding, (WADE), the Gray Diagnostic Reading Test, the Gray Oral Reading
Test, and the Adaptive Behavior Assessment System. [Kaufman testimony; S501].
125.

Dr. Kaufmans original report reflected his understanding that the Student was

using the SPIRE program. [S-448] Dr. Kaufman issued a corrected report after later
learning that the Student had not received the SPIRE program. [Kaufman testimony,
S-501]
126.

Dr. Kaufmans findings reflected that the Student has substantially limited

oral reading skills compared to her age and grade, citing scores consistent with an
early first grade functional level. [Kaufman testimony; S-527, S-501]. Dr.
Kaufman noted that the Student has pervasive challenges in the broader
developmental domain and fairly substantial challenges across intellectual,
processing, academic, and self-regulatory domains that will impact her
development of a range of adaptive functions as well. [Kaufman testimony, S474

508]
127.

Dr. Kaufman observed Ms. Mosca doing phonetic and word family work as

well as guided oral reading with the Student. [Kaufman testimony] While Dr.
Kaufman recommended additional instructional approaches, he did not observe
any instruction offered to the Student by the District that was either inappropriate
or significantly inconsistent with the types of reading practice done for students
who have reading disorders. [Kaufman testimony; S-516]
128.

Dr. Kaufman recommended a heavily teacher directed, systematic,

multisensory, synthetic phonics instructional program of the type developed by

Orton-Gillingham. [Kaufman testimony; S- 515] The four Orton-Gillingham
instructional programs include: 1) The Lindamood Phoneme Sequencing
Program (LiPS); 2) The Orton-Gillingham reading program; 3) Barbara
Wilson's adaptation; and 4) SPIRE. [Kaufman testimony]
129.

Dr. Kaufman testified that Orton-Gillingham-inspired programs are

multisensory to the extent that students engage the use of their bodies, especially
their fingers, arms and hands in understanding the sound structure of language.
[Kaufman testimony] He recommended the LiPS program for the Student in light
of its strong emphasis on developing of the oral motor mouth movement to
address the Students articulation issues. [Kaufman testimony] Dr. Kaufman
testified that there are many literacy specialists who would see SPIRE as being a
program that is reasonably calculated to benefit the Student. [Kaufman
testimony]
130.

Dr. Kaufman testified that the Lexia screen-based reading program has a

strong research base and can be quite effective and powerful. [Kaufman
475

testimony] The challenge with screen-based programming is that the student has
to be able to maintain independent focus. Accordingly, there has to be someone,
either an educational technician or a resource teacher, paying attention to the
student to cue him or her to attend, and that can happen effectively in resource
rooms and in other remedial learning contexts. [Kaufman testimony]
131.

Dr. Kaufman testified that it is possible to successfully transition from a

LiPS program into other forms of reading instruction. [Kaufman testimony]

132.

Dr. Kaufman testified that the Students improvement from 9 vowel sounds

to 11 vowel sounds and 21 consonant sounds to 24 consonant sounds following

the 40 private LiPS sessions was fairly limited and somewhat disappointing.
[Kaufman testimony]
133.

While SPIRE and other programs have less direct research support, its

construction is based upon research done on its programmatic elements that have
been assembled into the SPIRE program. [Kaufman testimony]
134.

In an e-mail dated February 14, 2014, Kim Mosca wrote to the Parent

stating that the Student was doing great with reading consonants, and has
begun reading DRA level 14 books. [S-393]
135.

In an e-mail to the Parent dated March 12, 2014, Ms. Mosca noted that the

Student was reading at a DRA level 14. [S-437] On March 21, 2014, Ms. Mosca
wrote an e-mail to the Parent noting that the Student dabbled in [DRA] level
16, but reading at that level was a stretch for independent reading. At this
time, a cold read (no pre-teaching of the book to the Student before reading)
remained difficult for the Student at a level 14. [Mosca testimony; S-535] In May
2014, the Student achieved an instructional DRA level of 14 and an independent
476

DRA level of 10. [Mosca testimony]

136.

In an e-mail to Kim Mosca dated February 14, 2014, the Parent noted that

that she was glad that [the Student] was making limited progress, although she
stated that she continued to advocate for her to have an instructional method that
fits her needs [S-394]
137.

The IEP team then met to review Dr. Kaufmans and Dr. Jeffersons

evaluations on March 28, 2014. [S-539] More meeting time was needed, and a
follow up meeting was scheduled for a few days later. [S-546] The Parent
requested a postponement of the follow up meeting because the physical therapist
was unable to attend. [Kucinkas Testimony; S-547]
138.

On April 17, 2014, the Parent informed the District that she would be pulling

the Student out of her literacy program beginning on May 2, 2014, in order to have
her receive private LiPS literacy instruction during the regular school day. [S-596,
736]
139.

At the May 1, 2014 IEP team meeting, it was determined that the District

would provide the SPIRE literacy program, the Great Leaps methodologies,
additional literacy goals, and additional consultation with Dr. Jeffereson. [S-677;
S-711-714]
140.

Since that time, Dr. Jefferson provided consultation [S-A-8 A- 10] and has

developed a draft behavior plan for use with the Student. [S-l 180] The Parent has
continued to keep the Student out of school for literacy instruction during the
new school year. [Parent testimony]
141.

In April and May of 2014, the Student engaged in several hands-on

behavioral incidents with other students. [S-548, 580; Mosca Testimony]

477

142.

On April 29, 2014, Dr. Jefferson requested that Falmouth fund three more

hours of her time to develop a formal behavior plan for the Student due to the
uptick in hands-on behavior. [S-660]
143.

On May 1, 2014, the Students IEP Team met to discuss the Students

behavior support plan, her reading goals and other aspects of the Students
programming. [S-177]
144.

At this meeting, the IEP team determined that the zones of regulation

behavior system would be used to address the Students behavior regulation

issues, along with the use of coins instead of tokens. [S-732] In addition, the
District would contract with Dr. Jefferson for up to three visits, to observe and
look at target behaviors, behavioral programming[and] would seek to
implement Dr. Jeffersons recommendations. [S-177] The District denied the
Parents request for LiPS instruction and agreed only to provide the Student with
SPIRE instruction beginning in September 2014 [S-808]
145.

The Parent requested a functional behavior assessment (FBA) for the

Student on May 12, 2014. [S-751]

146.

Following her review, Dr. Jefferson concluded that it would not be

appropriate to conduct a functional behavior assessment (FBA)63 at that time.

[S-774]
147.

Dr. Jefferson explained that in order to conduct a reliable FBA, it was

necessary to gather data in a very structured manner, including before and after
63

A functional behavior assessment (FBA) is an evaluation that provides the

foundational support for a students behavior support plan. Maines regulations specify
that an FBA is a school based process used by the [IEP] Team . . . to determine why a
child engages in challenging behaviors and how the behavior relates to the childs
environment. MUSER I.15.
478

behaviors and reinforcing behaviors. [Jefferson Testimony]

148.

In her behavior consultation notes dated May 28, 2014, Dr. Jefferson stated

that the Student was not able to effectively use the zones of regulation system,
which was too complicated for the Student. [Jefferson testimony; S-A-9] Dr.
Jefferson noted that other factors could be contributing to the Students behavior
issues, including regularly missing her morning social group and decreased
instruction in social/conversation skills. [Jefferson testimony] Dr. Jefferson also
noted that the Students removal from school to attend private literacy training
could have deprived her with respect to peer interaction. [S-A-8]
149.

Dr. Jefferson testified that it was a permissible practice to implement a

behavior plan without conducting an FBA with respect to programs in the

construction phase. [Jefferson testimony]
150.

Dr. Jefferson recommended further data collection on the Students

aggression, along with the development of a formal behavioral support plan to

address the behavior concerns. [S-A-8-10] A Point System Protocol was
prepared by Dr. Jefferson on June 4, 2014, along with a draft Behavior Support
Plan on June 11, 2014. [S-1180]
151.

On April 17, 2014, the Parent provided the District with written notice that

the Student would be receiving private LiPS instruction beginning in early May
2014 [S-596]. The Parent retained Kathleen Coffin, a private language therapist
capable of delivering the LiPS program. [Parent testimony] Ms. Coffin is a
Language Therapist/Reading Consultant in private practice who has a
bachelors degree in psychobiology and has been trained in LiPS and other
Orton/Gillingham literacy programs. [Coffin testimony]
479

152.

Kathleen Coffin testified that on May 5, 2014 she began working with the

Student on the LiPS program at a frequency of 3 times per week for

approximately one hour. As noted in an undated Progress Report, Ms. Coffin
performed an informal assessment on the Students strengths/weakness during
her initial session with the Student. [P- 584] In this report, she noted that the
Student was able to correctly identify most of the consonant sounds and a
few of the vowel sounds. [P- 584] The report also stated that the Student had
difficulty when the letters were combined into words. [P- 584]
153.

Ms. Coffin testified that unlike other Orton/Gillingham programs, LiPS has

more of an oral/motor component and establishes a students phonemic

awareness to get to where they can use other literacy programs. [Coffin
testimony] Ms. Coffin testified that the average student undergoes 120 hours of
LiPS training, and that the Student has had about 50 hours of training as of
September 5, 2014. Ms. Coffin noted that the Student sometime has trouble
keeping attention and doesnt always last the whole hour. [Coffin testimony]
Ms. Coffin testified that in her opinion it is easier for the Student to feel
sounds-in her mouth than to tell her about the sounds. [Coffin testimony]
154.

In an undated Progress Report prepared by Kathleen Coffin, it was noted

that the Student was able to correctly identify all of the consonant sounds and 11
vowel sounds on August 3, 2014 after 40 LiPS literacy sessions. [P- 584] Ms.
Coffin testified that she doesnt test using qualitative measures but only performs
informal testing when a student seems pretty constant. [Coffin testimony]
155.

Ms. Coffin testified that it would be inappropriate for the Student to

participate in a traditional language program or another Orton/Gillingham

480

literacy program until she completed her LiPS training. [Coffin testimony]
The Parent filed for the current due process hearing on or about June 13,

156.
2014.
VI.

SUMMARY OF THE PARTIES ARGUMENTS

Brief summary of the position of the Parent:

The Parent argues that all three of the Students IEPs, developed and implemented prior to
and during the 2013-2014 school year, failed to provide the Student with a FAPE. She
claims that, the reading component of the Students IEPs insufficiently targeted the
Students decoding skills. She cites the IEP developed on October 31, 2013, which
purported to provide the SPIRE and claimed that the District never took any steps to
implement this program. She stated that, while she may have disagreed with the IEP Team
decision at the time, the District remained obligated to move forward with programming as
determined. She asserts that, at the very least, the District should have notified her that it
was suspending the implementation of SPIRE pending further discussion of the programs
research basis. She notes that the SPIRE program has not been subjected to peer-reviewed
research, contrary to IDEA standards, which require that services provided to children with
disabilities be based on peer-reviewed research to the extent practicable.
The Parent argues, in the alternative, that it was practicable for the District to use the
Lindamood Phoneme Sequencing Program (LiPS) with the Student, which is a peerreviewed program. She states that the Students IEP, as amended in May 2014, remained
inappropriate in the area of literacy skill instruction due to the continued lack of direct
peer-reviewed research and Dr. Kaufmans recommendations.

481

The Parent also claims that, the District failed to provide direct social skills instruction to
help the Student attain her goals on this critical set of functional skills. She asserts that
none of the IEPs provided for any direct specialized instruction in this area for the Student.
She requests compensatory services designed to provide the Student with services to allow
her attain the level of skill and function she would have developed had proper services
been delivered in a timely fashion.

The Parent argues that the District failed to conduct a timely FBA. When the Students
behavioral spiked in April and May 2014, the Parent requested a functional behavior
assessment (FBA) to determine the cause of these increased negative behaviors. She
asserts that, despite her request, the District inappropriately failed to conduct an FBA and
disregarded a recommendation from Dr. Jefferson that an FBA would be a best practice
when formulating a behavioral support plan for the Student. She states that, instead, the
District improperly implemented a behavior support plan that was a) drafted without
parental input; b) never reviewed with her at an IEP Team meeting; and c) prepared
without full knowledge of the Students sensory issues, as set forth in her most recent OT
evaluation.
Finally, the Parent claims that signing of a Withdrawal Request Form in December 2013,
was not a voluntary and intentional release of her FAPE violation claims that she alleges to
have occurred during the first 3 months of the Students third grade year. She states that
it was her intent to merely ensure that the hearing, scheduled for January 2014, did not go
forward as scheduled in order to have time to review the independent evaluation results
before potentially re-filing her hearing request. She notes that IDEA waivers require a
higher standard of review; that she did not have the benefit of consulting with counsel;
482

and that she did not adequately understand the meaning of the term with prejudice
before drawing and checking a box on the form that she found to be confusing.
B. Brief summary of the position of the District:
The District argues that the Parent has the burden of proving that each of the IEPs she is
challenging failed to meet IDEA standards and that the Student suffered educational harm
as a result. It asserts that the Hearing Officer must view the IEP as a unitary whole and in
terms of what was reasonable when the document was promulgated, not in hindsight. It
asserts that special education is not a guarantee of success, but a reasonable calculation or
programming that will result in educational gains in the least restrictive environment and
that the evidence shows that the Students IEP met this standard.
The District also argues that the law is well settled that parents do not have the right to
compel a school district to provide a specific program or educational methodology. It
claims that the Student received a comprehensive literacy program from Kim Mosca, the
Students special education teacher during the 2013-14 school year. It notes that all the
school witnesses testified in favor of the beneficial nature of the programming in the area
of literacy delivered by Ms. Mosca and that the Student demonstrated success and a level
of progress consistent with what might be expected of her, given the nature of her
disability. It highlighted Dr. Kaufmans testimony that he found nothing negative about
the reading program the Student received during her third grade year.
The District also argues that the Students DRA levels, moving from an instructional level
of 10 to 14 between October, 2013 and April 2014, suggest that the Student was
benefitting from her literacy program. It points to Ms. Moscas qualitative assessment that
the Students independent DRA reading level moved from an 8 to a 10 during the similar
period. The District suggests that there was no evidence that the Student should have
483

progressed more notably during this time period, noting that even the Parent stated that she
had seen reading improvement during the year.
With regard to the SPIRE program, the District asserts that the Parent expressly stated that
she was not in agreement with this program for the Student. As a result, the District
believes that it appropriately withheld this part of the Students reading program. It points
to expert witnesses testimony that approved the appropriate nature of the SPIRE program
for the Student, and the likely benefits she will receive when it is delivered to her.
The District urges that the Parent also waived her claim of FAPE violations alleged to
have occurred during part of the 2013-2014 school year when she signed the Withdrawal
Request Form in December 2013. It argues that the language of the Form clearly states
that all hearing issues were resolved, including past claims against the District relating to
the Students literacy and other programming. The District asserts that, if the Parent did
not intend to waive past claims, her signature on this form was part of her plan to deceive
the District into entering into an agreement that she knowingly did not intend to follow.
The District believes that it appropriately denied the Parents request for an FBA in light
of Dr. Jeffersons recommendations. It states that it followed the advice of Dr. Jefferson,
the sole behavior expert in this case, who testified that that an FBA was not appropriate in
light of the type and frequency of the Students reported behaviors.
The District urges that the Parent failed to establish any educational harm to the Student,
and therefore her request for compensatory education should be denied.

V.

LEGAL STANDARD AND ANALYSIS

B. Burden of Proof
484

Although the IDEA is silent on the allocation of the burden of proof, the Supreme
Court has held that in an administrative hearing challenging an IEP, the burden of
persuasion, determining which party loses if the evidence is closely balanced, lies
with the party seeking relief. Schaffer v. Weast, 126 S.Ct. 528, 537 (2005). As such,
the Parent bears the burden of persuasion in this matter.64
B. The Students claims under the IDEA for the period between September 1, 2013December 17, 2013 are barred as a result of a private settlement agreement and
waiver signed by the Parent.
The Parent cites a Third Circuit case for the proposition that IDEA waivers should be held
to a higher standard of review. W.B. v. Matula, 67 F.3d 484, (3d Cir. 1995). In Matula, the
court held that it is necessary to review the totality of circumstances when considering an
alleged IDEA waiver, taking into account whether 1) the language of the agreement was
clear and specific; 2) the consideration given in exchange for the waiver exceeded the
relief to which the signer was already entitled by law; 3) the signer was represented by
counsel; 4) the signer received an adequate explanation of the document; 5) the signer had
time to reflect upon it; and 6) the signer understood its nature and scope. Id. at 497.65
Even applying the Matula standards, I find that the Parent waived her claims under IDEA
for the period between September 1, 2013-December 17, 2013. First, the Parent checked
and initialed a hand-written box next to a paragraph that indicated that she wished to
withdraw her hearing with Prejudice, which states in parenthesis on the form: all
hearing issues were settled in a written resolution or mediation agreement. [S-351] While

64

The issue of the burden of proof on the Parents waiver is discussed below, infra.
No first circuit cases were located that address the issue of whether IDEA waivers
should be held to a higher standard of review.
485
65

the paragraph on the form that Parent did not sign contained redundant language with
regard to the with and without prejudice option, there was no testimony from the parent
that she was confused by this choice, which ultimately she did not select.
The Parents amended hearing request included an allegation that the District failed to
provide effective instruction from [School Year] 2011 to present.. due to non-evidenced
based instructional programsdemonstrated by lack of progress [S-319] The evidence
supports a finding that the Parent knew that by dismissing her hearing request, she was
dismissing her claim for compensatory education damages for the Districts alleged
instructional failures since 2011.
While the Parent was not represented by counsel at the time she signed the withdrawal, she
had recently worked with an advocate who had provided advice on other matters. [Parent
testimony] The Parent is an experienced special education teacher, more sophisticated
than most parents with respect to special education issues. [Parent testimony] Therefore,
while there was no testimony from the parent that she was confused about these
documents, she knew how to avail herself of legal advice or advocacy in the event that she
had any questions about the terms or ramifications of the withdrawal request.
This form was signed in conjunction with December 13, 2013 settlement letter in which
outlined 10 different items that the District had agreed to do, ranging from Student
evaluations to specific communication and notice protocols with the Parent. [S-335].
While the IDEA requires student evaluations and communication with parents, there is no
evidence to support a finding that the District was offering items that it was already
required to do under the IDEA or MUSER. Mr. Kuncinkass wrote that based upon this
agreement the Parent would withdraw her current due process hearing request. [S-335].
486

Furthermore, there is no evidence that the District failed to comply with the settlement
terms outlined in this letter.
Lastly, the evidence does not support a conclusion that the Parent was given insufficient
time to review the December 13, 2013 proposed agreement before signing the withdrawal
request form on December 17, 2014. The Parents testimony on this subject was
contradictory. On the one hand, she testified that she thought all issues were settled and
that she didnt want a hearing in January because she was too busy with the holidays
coming up. On the other hand, she stated that she never intended to release her past
claims66. [Parent testimony] I find that the Parents testimony that she was reasonably
confused about the waiver form or her reasonable belief that she was preserving claims
prior to December 17, 2013 is not credible.
Under Maine law, waiver is an affirmative defense, so the burden of proving its existence
rests with the District. Blue Star Corp. v. CKF Properties, LLC, 2009 ME 101 25, 980
A.2d 1270, 1276 (Me. 2009). I find that the District met its burden and that the Parent
waived her claims that occurred prior to December 17, 2013.

C. The District provided the Student with a free appropriate public education
(FAPE) and placement in the least restrictive environment during the 2013-2014
academic year.
The U.S. Supreme Court has prescribed a two-part test for analyzing challenges to an IEP
and educational placement. First, has the State complied with the procedures set forth in
the Act? And second, is the individualized education program developed through the Acts
procedures reasonably calculated to enable the child to receive education benefits? Board
66

The Parent did not notify that Mr. Kucinkas of her intent to preserve claims prior to the
filing of her hearing request on November 5, 2013.
487

of Educ. v. Rowley, 458 U.S. 176, 206-207 (1982). The First Circuit suggests that the first
part of this test is more instructive than dispositive, and that compliance with the second
part is likely to nullify a violation of the first. See Town of Burlington v. Dept. of Educ.,
736 F.2d 773, 788 (1st Cir. 1984). (The ultimate question for a court under the Act is
whether a proposed IEP is adequate and appropriate for a particular child at a given point
in time.)
Pursuant to that standard, procedural violations will undermine an IEP only if there is
some rational basis to believe that procedural inadequacies compromised the pupils right
to an appropriate education, seriously hampered the parents opportunity to participate in
the formulation process, or caused a deprivation of educational benefits. Roland M. v.
Concord Sch. Comm. 910 F.2.d 983, 994 (1st Cir. 1990)
i. Literacy Instruction
In a Written Notice, dated October 31, 2013, the District proposed that the Student receive
60 minutes per day of literacy instruction in the SPIRE program. [S-155] In a letter dated
November 14, 2013, the Parent wrote to the District stating that she was not in agreement
with the proposal to use the SPIRE as there was no objective research proving that it could
help the Student. [Parent testimony, S-269] As a result, the District did not provide the
SPIRE program to the Student as determined at the October 31, 2013 IEP team meeting.
The District argues that the Parent knew or should have known that the SPIRE program
was not provided to the Student, and that the Districts failure to offer the SPIRE program
is more properly the responsibility of the Parent who refused to permit the program to
happen.
There is no evidence on the record, however, that the Parent openly obstructed or refused
488

to permit the SPIRE training. Rather, in a letter dated November 14, 2013, the Parent
wrote to Mr. Kucinkas stating that she was not in agreement with the proposal to use
SPIRE as she was concerned that it was not evidenced based. [Parent testimony, S-269]
The evidence in this case does not support a finding that the Parents behavior rose to a
level of parent obstructionism as suggested by the District, thereby relieving it of its
obligation to fulfill the requirements of the Students IEP. 67 Unlike the obstructionist
cases cited by the District, there is no evidence that the Parent prevented the District from
providing programming to the Student, and the District made no effort to follow up with
the Parent with regard to her lack of agreement with SPIRE.68
I find that the Parent believed that the Student was being trained in SPIRE. The Parents
own testimony and by Dr. Kaufmans first report in which stated that the Student was using
the SPIRE program supports this finding [Kaufman testimony, S-448].
As set forth in MUSER VI.2.I it is ultimately the Districts responsibility, even if Parents
disagree, to ensure that the IEP includes the services that the child needs.69

67

The Parents disagreement in this case can be distinguished from the cases cited by the District: In Lessard
v. Wilton-Lydenborough Cooperative Sch. Dist. 518 F.3d 18, (1st Cir. 2008) the Parents unreasonable delay
in acting upon a completed IEP despite several efforts by the district to identify the parents concerns. In
Roland M. v. Concord Sch. Comm. 910 F.2.d 983, 992 (1st Cir. 1990), the parents removed the Student from
school and had specifically asked the school to refrain from independently testing the child, putting the
district in a poor position to remedy the omissions.
68

The District did not attempt to address this issue in connection with the settlement
discussions with the Parent leading up to the letter prepared by Mr. Kucinkas. [S-335]
69

MUSER VI.2.I states in relevant part as follows:

The IEP Team should work toward consensus, but the SAU has ultimate responsibility to ensure that a child
is appropriately evaluated; that the IEP includes the services that the child needs in order to receive FAPE;
and that the childs placement is in the least restrictive educational placement. It is not appropriate to make
evaluation, eligibility, IEP or placement decisions based upon a majority vote. If the team cannot reach
consensus, the SAU must provide the parents with prior written notice of the schools proposals or refusals,
or both, regarding their childs educational program, and the parents have the right to seek resolution of any
disagreements by initiating an impartial due process hearing or a State complaint investigation.
MUSER IX.3.B.(3) provides in relevant part as follows:

489

While the Districts failure to provide the SPIRE literacy program constitutes a procedural
violation, there must also be a finding that this procedural inadequacy was severe enough
that is deprived the Student of a FAPE. Roland M., 910 F.2d at 994. The question,
therefore, is whether the implementation of the IEP, as a whole, provided a FAPE despite
the procedural violation?
For this question, it is necessary to review the Students literacy program during the 20132014 academic year which was implemented by her special education teacher Kim Mosca.
Ms. Mosca instructed the Student in literacy for approximately 60 minutes per day on a 1:1
basis using level system books, the Wilson FUNdamentals fluency program, and Lexia, a
computer-based phonics program. [Mosca testimony]

Beth Weller, the Students Speech/Language Pathologist testified that she worked with the
Student for three 30 minute pull out speech sessions per week and worked with the
Student on social pragmatics, reciprocal communication skills and the goals established in
her IEP, including speech sounds, syllables, accuracy, verbal expression, multiple
definition words, initiating and follow up questions, word endings and expression of
concepts. [Weller testimony; S-195-198] As part of the Students Speech/Language
consultation, Ms. Weller met weekly with other staff order to coordinate and reinforce the
Students literacy skills and training.
During his observations of the Student in January and February, 2014, Dr. Kaufman
observed Ms. Mosca doing phonetic and word family work as well as guided oral
Each school administrative unit shall implement a child with a disability's Individualized
Education Program as soon as possible following the IEP Meeting but no later than 30 days
after the IEP Team's initial identification of the child as a child with a disability

490

reading with the Student. [Kaufman testimony] Dr. Kaufman testified that while he had
other recommendations to improve the Students literacy instruction, he did not observe
any instruction offered to the Student by the District that was either inappropriate or
significantly inconsistent with the types of reading practice done for students who have
reading disorders. [Kaufman testimony; S-516].
Dr. Kaufman noted that although the Lexia screen-based reading program requires an
educational technician or a resource teacher to pay close attention to the student while
delivering the training, it can be quite effective and powerful. [Kaufman testimony]
Kim Mosca testified that she used the Lexia program while working with the Student on a
1:1 basis. Accordingly, the record supports a finding that a requisite level of supervision
was provided to allow the Student to benefit from the Lexia program.
Because there is no bright-line rule on the amount of benefit required of an appropriate
IEP, courts and hearing officers must use an approach requiring a student-by-student
analysis that carefully considers the students individual abilities. Ridgewood Bd. of
Educ., 172 F.3d at 248 (decision-maker must analyze the type and amount of learning
that a student is capable of when determining whether meaningful benefit has been
provided). Whether a program provides a meaningful benefit however, must be
individualized, based upon each students potential for advancement. Polk v. Central
Susquehanna Interm. Unit 16, 853 F.2d 171, 180 (3d Cir. 1988).
In the present case, it is undisputed that the Student has significant disabilities. The
Students triennial test results at the end of the Students second grade year noted cognitive
scores in the extremely low range, with scores on the Phonological Awareness and Early
Written Language tests in the below average range. [S-6S-9; S-11]. On October 31, 2013,
the Students DRA level for her ability to read with minimal support was determined to be
491

at a level 8, while her instructional level was determined to be at a level 10. [S-189] Based
upon his 2014 evaluations and observations, Dr. Kaufman noted that the Student has
fairly substantial challenges across intellectual, processing, academic, and self-regulatory
domains and low general intelligence substantial working memory difficulties and
substantially limited oral reading skills as compared to her age and grade... [Kaufman
testimony; S-527, S-501].70
Despite the Students challenges, I find that the Student made demonstrable gains in her
literacy skills. On January 10, 2014, Ms. Mosca wrote an e-mail to the Parent, noting that
the Student was reading at a DRA level 13. [S-356] In an e-mail dated February 14, 2014,
Ms. Mosca wrote to the Parent stating that the Student was doing great with reading
consonants, and has begun reading DRA level 14 books, prompting a response from the
Parent that she was glad that [the Student] was making limited progress. [S-394; S-393]
Beth Weller, the Students Speech and Language Pathologist, testified that the Student had
a beneficial year and made reasonable progress. [Weller testimony] Dr. Jefferson
observed the Student working on her specially designed literacy program and testified that
the Student was oriented to the instruction and demonstrated 80% accuracy in her skills.
She added that there appeared to be no loss of instructional time or the Students
engagement during the 70 minute session.

70

The Students challenges were observed within her private LiPS training sessions. On August 3, 2014,
after completing 40 private LiPS training sessions, her vowel sound recognition improved from 9 to 11 and
consonant sound recognition improved from 21 to 24, which Dr. Kaufman characterized as fairly
limited and somewhat disappointing. [Kaufman testimony]

492

On March 12, 2014, Ms. Mosca noted that the Student was reading at a DRA level 14 and
by May 2014, the Student achieved an instructional DRA level of 14 and an independent
DRA level of 10. [Mosca testimony; S-437] 71
Even if LiPS, SPIRE or some other methodology could have increased the
Students gains, the benefit conferred need not reach the highest attainable level or even
the level needed to maximize the childs potential. As the First Circuit stated in Lenn v.
Portland Sch. Comm. 998 F.2d 1083, (1st Cir. 1993) the law does not promise perfect
solutions to the vexing problems posed by the existence of learning disabilities in children
and adolescents. Id at 1086. The Individuals with Disabilities Education Act (IDEA) sets
more modest goals: it emphasizes an appropriate, rather than ideal, education; it requires
an adequate, rather than optimal, IEP. Appropriateness and adequacy are terms of
moderation. Id. at 1089.
In Roland M., the First Circuit described the goal as to provide the student with
demonstrable benefits. Roland M., 910 F.2d at 991. As the First Circuit explained:
The issue is not whether the IEP was prescient enough to achieve perfect academic
results, but whether it was "reasonably calculated" to provide an "appropriate
education" as defined in federal and state law . . . For one thing, actions of school
systems cannot, as appellants would have it, be judged exclusively in hindsight. An
IEP is a snapshot, not a retrospective. In striving for "appropriateness," an IEP
must take into account what was, and was not objectively reasonable when the
snapshot was taken, that is, at the time the IEP was promulgated. See 34 C.F.R. Pt.
300, App. C.
Id.
71

The Parent incorrectly quotes an undated report prepared by Kathleen Coffin, the Students private LiPS
instructor. In the Parents closing brief, she asserts that Ms. Coffin wrote in her progress report that the
Students participation in the Districts program had left her, in May of third grade, unable to identify most
phonemes when the letters were combined into words, including two letter words. Ms. Coffins report,
which provides only general information on the Students skills and deficits, merely states that the Student
had difficulty when the letters were combined into words. She noted that the Student was able to correctly
name and give the isolated sounds for most of the consonant sounds and a few of the vowel sounds. [P584]

.
493

Despite the Districts procedural violation by not providing the SPIRE program as determined
in the October 31, 2013 IEP, I find that the District provided the Student with a FAPE. The
literacy program delivered was reasonably calculated to provide educational benefit for the
Student. Taking the Students abilities into account, I find that the Student achieved
demonstrable improvement in her literacy skills.
Accordingly, I find that the Parent, as the party seeking relief, did not meet her burden of
persuasion with regard to the claim that the Student was not provided with a FAPE during
the 2013-2014 school year.
ii. Methodology.
The Parent argues that IDEA standards require that services provided to children with
disabilities be based on peer-reviewed research to the extent practicable, and that neither
the program provided or the proposed SPIRE program meet this standard, and thereby
deprived the Student of a FAPE. The Parent argues that it remains practicable for the
District to use the Lindamood Phoneme Sequencing Program (LiPS) with the Student, as
recommended by Dr. Kaufman.
The Parent correctly points out that in 2004, Congress added the following provision to the
IDEA: "[T]he term 'individualized education program' or 'IEP' means a written statement
for each child with a disability ... that includes ... a statement of the special education and
related services and supplementary aids and services, based on peer-reviewed research to
the extent practicable, to be provided to the child." 20 U.S.C. 1414(d)(1)(A)(i)(IV). This
language was incorporated into the revised IDEA regulations in 2006. 34 C.F.R.
300.320(a) Ridley School District v. M.R.; J.R., Parents of Minor Child E.R. v. Janet
Cenname 680 F.3d 260 58 IDELR 271 112 LRP 25613 U.S. Court of Appeals, Third
494

Circuit 11-1447 May 17, 2012.

In Ridley, the parents of a child with a reading disability alleged that the district violated
the IDEA for offering a reading program known as Project Read which had not been
thoroughly tested with regard to its effectiveness for their childs unique combination of
disabilities. Id. The parents argued that the district should have provided the Wilson
Reading System, a program already proven to be effective for teaching students with
learning disabilities similar to those of the student. Id. The Ridley Court affirmed the
District Courts finding that although Project Read may not have had the same level of
peer review and support, it had been shown to be helpful in improving the reading skills of
students with disabilities similar to the child in pending case. Ultimately, the Court held:
Given that the IDEA does not require an IEP to provide the "optimal level of services,"
D.S., 602 F.3d at 557 (citations omitted), we likewise hold that the IDEA does not require
a school district to choose the program supported by the optimal level of peer-reviewed
research. Rather, the peer-reviewed specially designed instruction in an IEP must be
"reasonably calculated to enable the child to receive meaningful educational benefits in
light of the student's intellectual potential." Chambers, 587 F.3d at 182 (citation
omitted) In selecting special education programs, a school district must be able to take
into account not only the needs of the disabled student, but also the financial and
administrative resources that different programs will require, and the needs of the school's
other non-disabled students. See J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 70 (2d Cir. 2000)
Ridley School District v. M.R.; J.R., Parents of Minor Child E.R. v. Janet Cenname 680
F.3d 260 58 IDELR 271 112 LRP 25613 U.S. Court of Appeals, Third Circuit 11-1447
May 17, 2012
The present case is factually similar to Ridley. Dr. Kaufman testified that although SPIRE
has less direct research support, its construction is based upon research done on its
programmatic elements and is a program that he believes is reasonably calculated to
benefit the Student. Beth Weller, the Students Speech/Language Pathologist, testified that
SPIRE offers a comprehensive reading program with phonological awareness concepts
including vocabulary, comprehension, encoding, spelling, phonemic and fluency. Based
495

upon this credible testimony, I find that the programming offered and delivered to the
Student was based upon research and designed to provide educational benefit to the
Student.
With regard to the literacy program received by the Student during her 2013-2014 school
year, there was no evidence that the literacy programs provided by the District were not
researched based. Dr. Kaufman testified that he did not observe any instruction offered to
the Student by the District that was either inappropriate or significantly inconsistent with
the types of reading practice done for students who have reading disorders. [Kaufman
testimony; S-516].
Educational methodology generally falls within the discretion of the school district unless
the method is distinctive or exclusive. Central Bucks School District 40 IDELR 106, 103
LRP 52413, Pennsylvania State Educational Agency, November 13, 2003; see also,
Medina Valley Independent School District, Texas State Educational Agency, 106 LRP
29730 October 10, 2005; Brougham v. Town of Yarmouth, 823 F. Supp. 9, 16 (d. Me.
1993), quoting Lachman v. Illinois State Board of Education, 852 F.2d 290, 297 (7th Cir.),
cert. denied, 109 S.Ct. 308 (1988). As noted by Dr. Kaufman, there were several different
literacy programs that could be viewed as appropriate for the Student, including the SPIRE
program.
Accordingly, although the literacy programs offered to the Student may not have been
optimal, the record does not support a finding that the District deprived the Student of a
FAPE by offering her the SPIRE or the modified literacy program provided during the
2013-2014 school year. See S.A. v. Riverside DeLanco Sch. Dist., 2006 WL 827798
(D.N.J. March 30, 2006)
iii. Social and Behavioral Instruction.
496

The Parent also argues that the District failed to provide direct social skills instruction, and
that none of the IEPs provided for any direct specialized instruction in this area for the
Student.
The term education has a broad meaning under the IDEA and is not limited merely to
academic growth. Mr. I. v. Maine Sch. Admin. Dist. No. 55, 480 F.3d 1, 12 (1st Cir. 2007);
Accordingly, an IEP must be designed to target all of a child's special needs, whether
they be academic, physical, emotional, or social. Lenn v. Portland Sch. Comm., 998 F.2d
1083, 1089 (1st Cir. 1993), 20 U.S.C. 1415(d)(1)(A).
In the present case, the Students IEP team determined at the October 31, 2013 meeting that
she would receive 30 minutes per week of social skills activities and weekly participation
in a lunch-time friendship group with her guidance counselor. [S-189; S-154-155] The
Student participated in a social skills program with her peers from 8:45 a.m. to 9:00 a.m.
on Tuesdays and Thursdays, however she occasionally missed these programs due to her
late arrival at school. [P-234, 235; Mosca testimony]
Once the Students behaviors towards her peers became a concern in April 2014,
the Students IEP Team met to discuss her behavior support plan and other aspects of the
Students programming. [S-177] At the May 1, 2014 meeting, the IEP team determined
that a zones of regulation behavior system would be used to address the Students
behavior regulation issues, along with the use of coins instead of tokens. [S-732] In
addition, it was determined that the District would contract with Dr. Jefferson for up to
three visits, to observe and look at target behaviors, behavioral programming[and]
would seek to implement Dr. Jeffersons recommendations. [S-177]
MUSER VI.2.J.(4) provides that one of the major IEP Team responsibilities is to
497

develop and revise an Individualized Education Program. (emphasis added). A school

district is obligated, within a reasonable period of time, to review and develop a
programming alternative once it becomes clear the student's IEP is not working. M.C.
ex rel. JC v. Central Regional School District, 81 F.3d 389, 396-97 (3d Cir.), cert.
denied, 519 U.S. 866, 136 L. Ed. 2d 116, 117 S. Ct. 176 (1996).
I find that the District provided appropriate social skills programming for the Student in
the least restrictive environment, and appropriately responded to her behavior issues
when they became pronounced.
It is noteworthy that Dr. Jefferson explained during her testimony that the Students
behavior issues could be related to regularly missing her morning social group and
removal from school to attend private literacy training. In effect, Dr. Jefferson noted that
these absences from school could cause a form of deprivation with respect to her peer
interaction that may have contributed to her negative behaviors. [S-A-8] While the causes
of the Students behavior are uncertain at this point, the District should not be liable for a
denial of FAPE to the extent that the omission may have been due to Parent action.
See, Lessard v. Wilton-Lydenborough Cooperative Sch. Dist. 518 F.3d 18, (1st Cir. 2008);
Roland M. v. Concord Sch. Comm. 910 F.2.d 983, 992 (1st Cir. 1990), supra.
D. The District did not violate the Students rights under the IDEA by not providing
a Functional Behavior Assessment for the Student during the 2013-2014 academic
year.
As noted above, the Students IEP Team met On May 1, 2014 to discuss the Students
recent behavior issues. At this meeting, the team determined that Dr. Jefferson would be
retained for up to three visits, to observe and look at target behaviors, behavioral
programming [and that the team] would seek to implement Dr. Jeffersons
498

recommendations. [S-177] Following her review, Dr. Jefferson concluded that it would
not be appropriate to conduct an FBA at that time. [S-774] In her testimony, Dr. Jefferson
explained that a reliable FBA was based upon data gathered in a very structured manner,
including before and after behaviors and reinforcing behaviors. [Jefferson Testimony].
She stated that, since there were only a small number of incidents, the data necessary to
perform an FBA would not be reliable. Instead, she prepared a behavior plan without
conducting an FBA, which she testified was a permissible practice with respect to
programs in the construction phase.
The Parent argues that the FBA responsibility is triggered under the IDEA requirement
that a student be assessed in all areas of suspected disability . . . . 20 U.S.C.
1414(b)(3)(B); 34 C.F.R. 300.304(c)(4); MUSER V.2.C.4.
The Parents argument on this point lacks merit. The Districts obligation to assess
students does not necessarily trigger a responsibility to conduct an FBA. While the
regulations require that the FBA process must include the parent, there are only limited
circumstances where the MUSER requires a school administrative unit to conduct and
FBA, none of which are applicable here.72 I find that Dr. Jeffersons testimony is credible
that an FBA in the present case was not appropriate. Additionally, I find that the District
appropriately responded to the Students behaviors by addressing the issue in the May 1,
2014 IEP meeting, retaining Dr. Jefferson and implementing her recommendations.
E. If the Hearing Officer determines that the District failed to provide the Student
with a FAPE or violated the IDEA, what remedy is appropriate?

72

MUSER XVII F. requires a school administrative unit to conduct an FBA or review and modify an existing
behavior plan if the IEP team determines that a students conduct was a manifestation of the students
disability.

499

As the District provided the Student with FAPE and did not violate the IDEA, no
remedy is required.

ORDER
After consideration of the evidence presented during this due process hearing,
It is hereby ORDERED that:
1. The District provided the Student with a free, appropriate public education
during 2013-2014 school year despite a procedural violation by not
providing SPIRE training to the Student;
2. The District did not violate the Students rights under the IDEA by
refusing to provide a Functional Behavior Analysis during 2013-2014
school year;
3. The Parents claims for compensatory education damages from the
commencement of the 2013-2014 school year through December 17, 2013
are barred as a result of the agreement reached between the parties and the
Parents signing of a Hearing Withdrawal Request form on December 17,
2013.

Dated: October 14, 2014

_______________________
David C. Webb, Esq.
Hearing Officer

500

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE
ROBERT BELL, et al.
Plaintiffs,

v.

EDUCATION in the
UNORGANIZED TERRITORIES, et al.
Defendants.
Civil no. 00-CV-160-B
FINDINGS OF FACT AND CONCLUSIONS OF LAW
SINGAL, District Judge
Before the Court is Plaintiffs' Motion for Preliminary Injunction pursuant to section
20 U.S.C. 1415(j), the "stay put" provision of the Individuals with Disabilities Education
Act ("IDEA"), 20 U.S.C. 1400-1490. 1 For the reasons discussed below, Plaintiffs'
Motion is GRANTED. The grant or refusal of an interlocutory injunction
necessitates that the Court lay out findings of fact and conclusions of law, according to
Fed. R. Civ. P. 52(a).
I. FINDINGS OF FACT
For the purposes of the Motion for Preliminary Injunction, the facts of the case
are essentially undisputed.
1.

The Plaintiffs, Robert and Jane Bell, are the parents of Jesse Bell, an autistic

nineteen year-old with an intelligence quotient of 43. The Bells reside in Edmunds, which is within
the Unorganized Territories of Maine.

_____________________________
1
Section 1400(a) states that the appropriate short title of the statute is the "Individuals with Disabilities
Education Act", but many refer to it as the "Education for All Handicapped Children Act", which is the name
of the statute that amended and expanded the IDEA in 1975.
name of the statute that amended and expanded the IDEA in 1975.

501

2.

Defendant Education in the Unorganized Territories (EUT) is the local

agency responsible for educating children in the Unorganized Territories.

3.

Defendant J. Duke Albanese administers EUT in his official capacity as

commissioner of the Maine Department of Education.

4.

An agency of the State of Maine, EUT has funded and overseen Jesse's

education since grade school.

5.

Pursuant to the IDEA, the education of each disabled child is supervised by

a team consisting of the child's parents, teachers, school board representatives and if
appropriate, the student herself. In Maine, this team is referred to as the pupil evaluation
team ("PET"). 2
6.

Each year, the PET develops a plan for the child's curriculum, and

memorializes the plan in a written document entitled the individualized education

program ("IEP"). See 20 U.S.C. 1401(11); 1414(d).
7.

Each year, Jesse's PET has produced an IEP for him describing a

curriculum featuring various special educational services.

8.

For his high school years, Jesse's IEPs have specified that he was to

receive such educational services at Washington Academy, a private school?3

9.

Pursuant to those IEPs, Jesse has attended Washington Academy since

the autumn of 1996 at EUT' s expense.

_
____________________________

2. What Maine law refers to as a pupil evaluation team is identified in the federal IDEA as an
"individualized education program team" or an "IEP team". See 20 U.S.C. 1414 (d)(1)(B); 20-A
M.R.S.A. 7202(10); 05-071-101 Code Me. R. 8.1-8.11.
3. During oral arguments, Plaintiffs' attorney represented that there are no public schools in the Unorganized
Territories, so all children living in the Unorganized Territories have the right to attend private schools at the
expense ofEUT.

502

10.

In the spring of 2000, Jesse's PET recommended that Jesse graduate with

his class in the summer of 2000.

11.

Disagreeing with the PET's recommendation, his parents filed a request on

April11, 2000 for a due process administrative hearing pursuant to 20 U.S.C. 1415().
12.

The Bells maintain that Jesse is not yet ready to graduate from high school,

and they allege that EUT has denied Jesse a "free appropriate public education" pursuant to
the IDEA by failing to provide Jesse with all of the services that he requires.
13.

A due process hearing was held on May 8, May 9 and June 20,2000. On

July 14, 2000, the hearing officer issued a finding in favor ofEUT.
14.

The hearing officer found that EUT had not denied Jesse a free appropriate

public education and ordered Washington Academy to send Jesse a diploma.

15.

Pursuant to the hearing officer's ruling, Washington Academy sent a signed

diploma to Jesse.
16.

On August 14, 2000, the Bells appealed the hearing decision by filing a

complaint with this Court.

17.

With the school year fast approaching, the Bells also filed a Motion for Preliminary

Injunction, arguing that Jesse should remain at Washington Academy while this Court considers the
merits of their appeal.
II. CONCLUSIONS OF LAW
1.

Because of his autism, Jesse is a child with a disability protected by the IDEA. See

20 U.S.C. 1401(3)(A)(i).
2.

EUT is both an "educational service agency" and a "local educational

agency" within the meaning of the IDEA. See 20 U.S.C. 1401(4), 1401(15).
3.

EUT is responsible for providing Jesse with a free appropriate public

education. See, e.g., 20 U.S.C. 1412(a)(l)(A), 1412(a)(lO)(B).

503

4.

The Court finds Jesse's "then-current educational placement" as

attending Washington Academy according to the curriculum outlined in the 1999-2000

IEP.
5.

Defendants have changed Jesse's current placement by graduating him

and by allowing Washington Academy to send him a diploma.

6.

By acting to change Jesse's educational placement, Defendants have the

burden of making the four-part showing necessary for a preliminary injunction.

7.

The four elements of a preliminary injunction are: ( 1) likelihood of

success on the merits, (2) potential for irreparable harm if the injunction is denied, (3)
balance of the hardships, and (4) effect on the public interest.
8.

The record as it presently stands is insufficient to convince the Court that

(1) Defendants are likely to succeed on the merits, (2) Defendants could suffer irreparable

harm, (3) the balance of hardships favors Defendants, or (4) preventing Jesse from attending
Washington Academy is within the public interest.
9.

Therefore, the stay put provision requires that EUT continue to educate Jesse

Bell at Washington Academy according to the terms of the 1999-2000 IEP.

10.

Because the burden was on Defendants to make the four-part showing for

preliminary injunction, it would be unfair to require Plaintiffs to post a bond pursuant to Fed.
R. Civ. P. 65(c).
11.

Thus, Plaintiffs need not post any security in regard to this Order.

III. DISCUSSION
The Court offers the following discussion to explain its conclusions of law.

504

A. The Stay Put Provision

Plaintiffs' Motion requires this Court to apply and interpret the "stay put" provision
of the IDEA, 20 U.S.C. 1415(j). Before delving into an extensive discussion of the "stay
put" provision, it is important to note the general purpose behind the enactment of the IDEA.
The IDEA establishes a system to ensure that disabled students receive free
appropriate public education.
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."'
Bd. of Educ. v. Rowley, 458 U.S. 176, 179 (1982). The IDEA allocates federal funds to
state schools on the condition that those schools comply with extensive goals and procedures.
See id.
Many ofthose procedures are found in section 1415. Specifically, section 1415
allows for an administrative hearing, thereby enabling disabled children

through those who

act on their behalf, such as parents, guardians or child-protection agencies- to challenge

decisions made by schools or educational agencies regarding services and placements. Upon
the filing of a complaint, a hearing is held and an impartial hearing officer issues a decision.
This decision may be appealed to the local federal district court.
Once the representative of a disabled child has filed a complaint against an
educational agency, section 1415(j), often referred to as the "stay put" provision, operates to
compel the educational agency to continue teaching the child at her "then-current educational
placement" until the case is resolved. 20 U.S.C. 1415(j). The stay put provision states in
pertinent part that
during the pendency of any proceedings conducted pursuant to this section,
unless the State or local educational agency and the parent otherwise agree,
the child shall remain in the then-current educational placement of such
child, or, if applying for initial admission to a public school, shall, with the

505

consent of the parents, be placed in the public school system until all such
proceedings have been completed.
Id.73 The congressional intent of the stay put provision was to ensure that public schools do
not remove handicapped children over parents' objections pending completion of legal
proceedings. See Sch. Comm. ofBurlington v. Dep't ofEduc., 471 U.S. 359, 373
(1985). The stay put provision creates a strong presumption that children remain in their
current educational placements while their parents and school districts sort out the legal
ramifications. See Honig v. Doe, 484 U.S. 305, 328 (1988).
1. Applicability of Traditional Preliminary Injunction Criteria
Plaintiffs argue that the stay put provision creates an automatic injunction, compelling
EUT to allow Jesse to continue taking classes at Washington Academy until final resolution of
this case. Asserting that the stay put provision does not operate automatically, Defendants
argue that Plaintiffs must make the four showings traditionally necessary to obtain a
preliminary injunction: (1) likelihood of success on the merits, (2) potential for irreparable
harm if the injunction is denied, (3) balance of the hardships, and (4) effect on the public
interest. See Ross-Simons ofWarwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 15 (1st Cir. 1996)
(laying out the four traditional requirements in case not involving IDEA). Defendants cite Doe
v. Brookline Sch. Comm., 722 F.2d 910 (1st Cir. 1983) as support for their theory that the
four-part showing for preliminary injunctive relief applies to the Court's determination under
the stay put provision.

In Brookline, the First Circuit explicitly discussed the role of a motion for preliminary
injunction in a case involving the stay put provision. See id. at 917. In Brookline, the
defendant school committee unilaterally ceased funding a handicapped child's education at a
private school, although the private school was the last agreed upon placement under the
73

The stay put provision previously was codified at 20 U.S.C. 1415(e)(3).

506

child's IEP. See id. The parents of the child filed a motion asking the district court to order
the school committee to continue paying the child's tuition. See id. at 913. Treating the
parents' motion as a motion for preliminary injunction, the court reasoned that it should
consider the four requirements traditionally necessary for imposing preliminary injunctive
relief. See id. at 917.
The First Circuit found that the burden to establish the four criteria, however, was on
the school district, not the parents, because the school district had unilaterally stopped paying
the child's tuition. See id. The court held that "We believe that because Congress has
expressed a strong preference for the preservation of the status quo through its enactment of
[the stay put provision] ... the motion for preliminary injunction should be made by the party
wishing to depart from the status quo, here the school committee." Id. "[A] party that seeks to
modify an existing educational placement, program or services must proceed by a motion for
preliminary injunction ... the party seeking a modification
of the status quo should bear the burden of proof." Id. at 919. Thus, the Court reads
Brookline as requiring that it apply the traditional four- factor test for preliminary injunctive
relief to the party seeking to change Jesse's placement from the status quo.
2. The "Status Quo" or Current Placement
To determine who bears this burden, the Court must ascertain Jesse's "thencurrent educational placement" under the stay put provision. See 20 U.S.C. 1415(j).
Defendants contend that the status quo placement is that Jesse currently is graduated,
pursuant to the hearing officer's decision. Even though the hearing officer approved of the
decision to graduate Jesse, the hearing officer did not specify what constitutes Jesse's current
placement. The hearing decision only states: "On May 10, 2000 the Hearing Officer
ordered "stayput" as the 5/26-6110/99 IEP ..." (Def Resp. to Pl. Mot. for Prelim. Inj.,
Attach. 1, Docket #3, Due Process Hearing Decision #00.114 "Bell v. EUT" (italics in

507

original).) The IEP dated May 26, 1999 and June 10, 1999 indicates that Jesse would attend
Washington Academy for the 1999-2000 school year, and outlines Jesse's curriculum. The
hearing decision says nothing more regarding the stay put provision of the IDEA, leaving this
Court in a quandary as to the precise meaning of the above quoted sentence. At oral
argument, Plaintiffs' counsel stated that the issue - what should constitute the appropriate stay
put placement in the event that either party appealed the hearing officer's decision - was not
raised during the hearing. 74
In the instant case, the Court finds Jesse's current educational placement as
attending Washington Academy according to the curriculum outlined in the 1999-2000 IEP.
In the spring of 1999 while Jesse was still attending classes at Washington Academy,
Plaintiffs objected to Defendants' intention to graduate Jesse. The hearing took place while
Jesse was still enrolled in school. The Court interprets "... the Hearing Officer ordered

"stayput" as the 5/26-6/10/99 IEP ..." to mean that the hearing officer considered Jesse's
curriculum at Washington Academy as his current placement within the meaning of section
1415Q). The Court concurs with that assessment.
After establishing Jesse's current placement as Washington Academy, the Court now
must consider whether that placement has been changed. Federal and state regulations, as
well as a handful of cases, assert that graduation qualifies as a change in placement. See Carl
v. Mundelein High Sch. Dist. 120, 1993 WL 787899 at *2 (N.D. Ill. 1993) (imposing
preliminary injunction because school graduated child during pendency of administrative
74

The Court notes that this ambiguity could be avoided if a hearing officer inquired into the issue during a
hearing and made detailed findings as to what constituted the appropriate cun-ent placement. Such
determinations would greatly assist parties in understanding who ought to move for a preliminary injunction
under section 1415U) and where the child should be placed while any such motion or appeal is pending. In
addition, it would also be helpful if a hearing decision reflected whether the parties agreed, prior to the hearing,
that the hearing officer's decision as to current placement would bind them. See Verhoeven v. Brunswick Sch.
Corum., 207 F.3d 1, 8-9 (1st Cir. 1999) (finding that agreement between parents and school committee to let
hearing officer resolve stay put placement was binding and prevented parents from obtaining preliminary
injunction that would have essentially overturned the hearing officer's stay put determination).

508

proceeding); Cronin v. Bd. ofEduc., 689 F. Supp. 197, 203 (S.D.N.Y. 1988) ("[T]he decision
to graduate a handicapped child is a change in educational placement ... that triggers all of the
procedural protections of the Act.") (internal quotations omitted); Stock v. Massachusetts
Hosp. Sch., 467 N.E.2d 448, 453 (Mass. 1985) (finding "that graduation ... can hardly be
characterized as anything other than a change in placement."); 34 C.F.R. 300.122(a)(3)(iii)
("Graduation from high school with a regular diploma constitutes a change in placement. ..");
05-071-101 Code Me. R. 5.11 ("Graduation is considered to be a change in placement ...").
Nonetheless, Defendants argue that there has been no change in the status quo and
that Jesse's current placement is that he is a high school graduate. Quite simply, Defendant's
argument "would render the stay-put provision meaningless because the school district could
unilaterally graduate handicapped children." Cronin, 689 F. Supp. at 202 n.4 (explaining that
when the issue ultimately before the court is whether a student was properly graduated, the
student is entitled to remain in school under the stay put provision). The purpose of the IDEA
is to prevent schools from excluding disabled children from receiving an adequate education.
See Rowley, 458 U.S. at 179. A school can exclude disabled children through a variety of
methods, such as by ignoring them, expelling them, suspending them or graduating them.
Because graduation entails the transmission of a diploma and some measure of pomp and
circumstance does not inoculate graduation from the possibility that it is simply another form
of illegal exclusion. In fact, graduation is probably the most dire form of exclusion because it
potentially renders a person ineligible for future educational aid under the IDEA. See 34
C.F.R. 300.122(a)(3)(i); 05-071-101 Code Me. R. 5.11; cf. 20U.S.C. 1415(k) (an
educational agency may expel a disabled child usually for no longer than 10 days, no
longer than 45 days at the maximum); 05-071-101 Code Me. R. 1.3 ("The guarantee of
equal educational opportunity entitles each student with a disability residing in the State,

509

including students with disabilities who have been suspended or expelled, to be provided
with a free appropriate public education ...").
At the recommendation of the PET, EUT made the unilateral decision to graduate
Jesse, against Plaintiffs' wishes. The fact that the hearing officer upheld EDT's decision
does not change the fact that Defendants acted to change the status quo. Therefore, the
burden is on Defendants to move for a preliminary injunction and to make the requisite
four-part showing. Defendants argue that Plaintiffs have failed to fulfill the four
requirements for a preliminary injunction, but Defendants do not argue that they meet
those requirements. Moreover, the record as it presently stands is inadequate to convince the
Court that (1) Defendants are likely to succeed on the merits, (2) Defendants could suffer
irreparable harm, (3) the balance of hardships favors Defendants, and that (4) preventing Jesse
from attending Washington Academy is within the public interest.
Because Defendants have not made the requisite showing to overcome the strong
preference for the preservation of the status quo, the stay put provision requires Defendants to
allow Jesse to attend Washington Academy, according to the curriculum established in the
1999-2000 IEP, until either this case is resolved or Jesse is no longer eligible for benefits
under the IDEA. See, e.g., 20 U.S.C. 1412(a)(l); 20-A M.R.S.A. 7001(2)(B); 05-071-101
Code Me. R. 5.11 (student ineligible for IDEA benefits if she has reached the age of20
years by the start of the school year).

B. Posting a Bond
Defendants argue that if Plaintiffs are successful with their motion for preliminary
injunction, the Court should require Plaintiffs to post a bond to cover any and all costs that
Defendants may incur during the pendency of the litigation, pursuant to Fed. R. Civ. P. 65(c).

510

A few cases from other courts initially seem to support Defendants' demand for the
posting of a bond. See Bd. ofEduc. v. Illinois State Bd. ofEduc., 10 F. Supp. 2d 971, 982
(N.D. Ill. 1998) (ordering preliminary injunction and ordering plaintiff parents to
post nominal bond often dollars), vacated in part on other grounds, Bd. ofEduc. v. Kelly
E., 207 F.3d 931,938 (ih Cir. 1999); Stockton v. Barbour County Bd. ofEduc., 884 F. Supp.
201,208 (N.D. W.Va. 1995) (ordering plaintiff parents to post $10,000 bond to obtain
preliminary injunction); see also Stacey G. v. Pasadena Indep. Sch. Dist., 695 F.2d 949, 955
(5th Cir. 1983) (noting that, if defendant school district prevails on the merits, school district
is entitled to recover upon the bond posted by plaintiff parents as precondition to district court
granting preliminary injunction); Vander Malle v. Ambach, 673 F.2d 49, 50 n.2 (2nd Cir.
1982) (noting that district court ordered plaintiff parents to
post $15,000 bond). 75
In most of these cases, however, the parents, rather than the school districts, had
acted to alter the status quo. See Bd. ofEduc., 10 F. Supp. 2d at 974, 982 (parents
unilaterally placed child in private school then obtained preliminary injunction requiring
government to pay the private school tuition); Stockton, 884 F. Supp. at 204, 208 (same); see
also Stacey G., 695 F.2d at 951-52 (parents unilaterally placed child in private school). But
see Vander Malle, 673 F.2d at 50-51 (state unilaterally withdrew funding from child's
placement).
The Court sees no reason why the party seeking to maintain the status quo, in this
case Plaintiffs, should post a bond. As discussed above, the party seeking to change the
child's educational placement, Defendants, has the burden of making the four-part showing
for a preliminary injunction to override the stay put provision. See Brookline, 722 F.2d at
75

Defendants cite Bd. ofEduc. v. Illinois State Bd. ofEduc., 79 F.3d 654 (ih Cir. 1996), which noted that if the
defendant school district was trying to recover tuition funds, which it was not, it should have requested plaintiff
parents to post a bond when the district court granted a stay put injunction. See id. at 659. This Court finds such
hypothetical dicta unpersuasive

511

917. Because the burden is on Defendants, it would be patently unfair to require Plaintiffs
to post a bond pursuant to Fed. R. Civ. P. 65(c). Therefore, Defendants' request for a bond
is denied.

IV. CONCLUSION
For the reasons stated above, Plaintiffs' Motion for Preliminary Injunction is
hereby GRANTED. It is hereby ordered that Defendants maintain Jesse Bell in his current
educational placement at Washington Academy pursuant to 20 U.S.C. 1415(j).

SO ORDERED.
______________________
GEORGE Z. SINGAL
United States District Judge
Dated this 16th day of October, 2000.
ROBERT BELL, As parent and
next friend of JESSE BELL
plaintiff
JUDITH A. PLANO, ESQ. [COR LD NTC]
DISABILITY RIGHTS CENTER
24 STONE STREET
P.O. BOX 2007
AUGUSTA, ME 04338-2007
207-626-2774
JANE BELL, As parent and
next friend of JESSE BELL
plaintiff
JUDITH A. PLANO, ESQ.
(See above) [COR LD NTC]
v.
EDUCATION, UNORGANIZED TERRITORIES
defendant
AMY M. SNEIRSON, ESQ. [COR LD NTC]
DEPARTMENT OF ATTORNEY GENERAL
STATE HOUSE STATION #6

512

AUGUSTA, ME 04333
207/626-8800
MAINE COMMISSIONER OF EDUCATION
defendant
AMY M. SNEIRSON, ESQ.
(See above)
[COR LD NTC]

513

OCTOBER TERM, 1998

Syllabus

CEDAR RAPIDS COMMUNITY SCHOOL DISTRICT v.

GARRET F., a minor, by his mother and next friend,
CHARLENE F.
certiorari to the united states court of appeals for the eighth
circuit
No. 961793. Argued November 4, 1998Decided March 3, 1999
To help assure that all children with disabilities have available to them . . . a free
appropriate public education which emphasizes special education and related services
designed to meet their unique needs,
20 U. S. C. 1400(c), the Individuals with Disabilities Education Act (IDEA) authorizes
federal financial assistance to States that agree to provide such children with special
education and related services, as defined in 1401(a)(17). Respondent Garret F., a
student in petitioner school district (District), is wheelchair-bound and ventilator
dependent; he therefore requires, in part, a responsible individual nearby to attend to
certain physical needs during the schoolday. The District declined to accept financial
responsibility for the services Garret needs, believing that it was not legally obligated to
provide continuous one-on-one nurs- ing care. At an Iowa Department of Education
hearing, an Administra- tive Law Judge concluded that the IDEA required the District
to bear financial responsibility for all of the disputed services, finding that most of them
are already provided for some other students; that the District did not contend that only
a licensed physician could provide the services; and that applicable federal regulations
require the District to furnish school health services, which are provided by a qualified
school nurse or other qualified person, but not medical services, which are limited to
services provided by a physician. The Federal District Court agreed and the Court of
Appeals affirmed, concluding that Irving Independ- ent School Dist. v. Tatro, 468 U. S.
883, provided a two-step analysis of 1401(a)(17)s related services definition that
was satisfied here. First, the requested services were supportive services because
Garret cannot attend school unless they are provided; and second, the services were not
excluded as medical services under Tatros bright-line test: Services provided by a
physician (other than for diagnostic and evalua- tion purposes) are subject to the medical
services exclusion, but services that can be provided by a nurse or qualified layperson are
not.
Held: The IDEA requires the District to provide Garret with the nursing services he
requires during school hours. The IDEAs related serv- ices definition, Tatro, and the
overall statutory scheme support the

Syllabus
Court of Appeals decision. The related services definition broadly encompasses
those supportive services that may be required to assist a child with a disability to
benefit from special education, 1401(a)(17), and the District does not challenge the
Court of Appeals conclusion that the services at issue are supportive services.
Furthermore,
1401(a)(17)s general related services definition is illuminated by a parenthetical
phrase listing examples of services that are included within the statutes coverage,
including medical services if they are for diagnostic and evaluation purposes.
Although the IDEA itself does not define medical services more specifically, this
Court in Tatro concluded that the Secretary of Education had reasonably determined

514

that medical services referred to services that must be performed by a physician,

and not to school health services. 468 U. S., at 892894. The cost-based, multifactor
test proposed by the District is supported by neither the statutes text nor the
regulations upheld in Tatro. More- over, the District offers no explanation why
characteristics such as cost make one service any more medical than another. Absent
an elabora- tion of the statutory terms plainly more convincing than that reviewed in
Tatro, there is no reason to depart from settled law. Although the District may have
legitimate concerns about the financial burden of pro- viding the services Garret
needs, accepting its cost-based standard as the sole test for determining
1401(a)(17)s scope would require the Court to engage in judicial lawmaking without
any guidance from Con- gress. It would also create tension with the IDEAs
purposes, since Congress intended to open the doors of public education to all qualified
children and required participating States to educate disabled children with
nondisabled children whenever possible, Board of Ed. of Hendrick Hudson Central
School Dist., Westchester Cty. v. Rowley, 458 U. S. 176, 192, 202. Pp. 7379.
106 F. 3d 822, affirmed.
Stevens, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and OConnor, Scalia, Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J.,
filed a dissenting opinion, in which Kennedy, J., joined, post, p. 79.

Sue Luettjohann Seitz argued the cause for petitioners. With her on
the briefs was Edward M. Mansfield.
Douglas R. Oelschlaeger argued the cause for respond- ents. With
him on the brief was Diane Kutzko.
Beth S. Brinkmann argued the cause for the United States as
amicus curiae urging affirmance. With her on the
brief were Solicitor General Waxman, Acting Assistant At- torney
General Lee, Deputy Solicitor General Underwood, David K. Flynn,
and Seth M. Galanter.*
Justice Stevens delivered the opinion of the Court. The
Individuals with Disabilities Education Act (IDEA),
84 Stat. 175, as amended, was enacted, in part, to assure
that all children with disabilities have available to them . . . a free
appropriate public education which emphasizes special education and
related services designed to meet their unique needs. 20 U. S. C.
1400(c). Consistent with this purpose, the IDEA authorizes federal
financial assistance to States that agree to provide disabled children
with special educa- tion and related services. See 1401(a)(18),
1412(1). The question presented in this case is whether the definition of
related services in 1401(a)(17) 1 requires a public school
__________________________________
*Gwendolyn H. Gregory and Julie Underwood filed a brief for the National School
Boards Association as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the American Academy of
Pediatrics et al. by Paul M. Smith and Nory Miller; and for the National Association of
Protection and Advocacy Systems et al. by Leslie Seid Margolis.
1
The term related services means transportation, and such develop- mental,
corrective, and other supportive services (including speech pathol- ogy and audiology,
psychological services, physical and occupational ther- apy, recreation, including
therapeutic recreation, social work services, counseling services, including rehabilitation

515

counseling, and medical serv- ices, except that such medical services shall be for
diagnostic and evalua- tion 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. 20 U. S. C. 1401(a)(17). Originally, the
statute was enacted without a definition of related serv- ices. See Education of the
Handicapped Act, 84 Stat. 175. In 1975, Congress added the definition at issue in
this case. Education for All Handicapped Children Act of 1975, 4(a)(4), 89 Stat. 775.
Aside from non- substantive changes and added examples of included services, see, e. g.,
Individuals with Disabilities Education Act Amendments of 1997, 101,
111 Stat. 45; Individuals with Disabilities Education Act Amendments of 1991,
25(a)(1)(B), 105 Stat. 605; Education of the Handicapped Act

district in a participating State to provide a ventilator- dependent

student with certain nursing services during school hours.
I
Respondent Garret F. is a friendly, creative, and intelligent young man.
When Garret was four years old, his spinal column was severed in a
motorcycle accident. Though paralyzed from the neck down, his mental
capacities were unaffected. He is able to speak, to control his
motorized wheelchair through use of a puff and suck straw, and to operate a computer with a device that responds to head move- ments.
Garret is currently a student in the Cedar Rapids Community School
District (District), he attends regular classes in a typical school
program, and his academic per- formance has been a success. Garret is,
however, ventilator dependent,2 and therefore requires a responsible
individual nearby to attend to certain physical needs while he is in
school.3
___________________________
Amendments of 1990, 101(c), 104 Stat. 1103, the relevant language in
1401(a)(17) has not been amended since 1975. All references to the IDEA herein
are to the 1994 version as codified in Title 20 of the United States Codethe version of
the statute in effect when this dispute arose. 2 In his report in this case, the
Administrative Law Judge explained: Being ventilator dependent means that [Garret]
breathes only with exter- nal aids, usually an electric ventilator, and occasionally by
someone elses manual pumping of an air bag attached to his tracheotomy tube when
the ventilator is being maintained. This later procedure is called ambu
bagging. App. to Pet. for Cert. 19a.
3
He needs assistance with urinary bladder catheterization once a day, the suctioning
of his tracheotomy tube as needed, but at least once every six hours, with food and
drink at lunchtime, in getting into a reclining position for five minutes of each hour,
and ambu bagging occasionally as needed when the ventilator is checked for proper
functioning. He also needs assistance from someone familiar with his ventilator in the
event there is a malfunction or electrical problem, and someone who can perform
emergency procedures in the event he experiences autonomic hyper- reflexia. Autonomic
hyperreflexia is an uncontrolled visceral reaction to anxiety or a full bladder. Blood
pressure increases, heart rate increases,

516

During Garrets early years at school his family provided for his
physical care during the schoolday. When he was in kindergarten, his
18-year-old aunt attended him; in the next four years, his family used
settlement proceeds they received after the accident, their insurance,
and other resources to employ a licensed practical nurse. In 1993,
Garrets mother requested the District to accept financial responsibility
for the health care services that Garret requires during the schoolday.
The District denied the request, believing that it was not legally
obligated to provide continuous one-on-one nursing services.
Relying on both the IDEA and Iowa law, Garrets mother requested a
hearing before the Iowa Department of Edu- cation. An Administrative
Law Judge (ALJ) received extensive evidence concerning Garrets special
needs, the Districts treatment of other disabled students, and the
assistance provided to other ventilator-dependent children in other parts
of the country. In his 47-page report, the ALJ found that the District
has about 17,500 students, of whom approximately 2,200 need some
form of special education or special services. Although Garret is the only
ventilator- dependent student in the District, most of the health care
services that he needs are already provided for some other students.4
The primary difference between Garrets situation and that of other
students is his dependency on his ventilator for life support. App. to
Pet. for Cert. 28a. The ALJ noted that the parties disagreed over
the training or licensure required for the care and supervision of such
stu- dents, and that those providing such care in other parts of the
country ranged from nonlicensed personnel to registered nurses.
However, the District did not contend that only a licensed physician
could provide the services in question. The ALJ explained that federal
law requires that children with a variety of health impairments be
provided with spe- cial education and related services when their
disabilities adversely affect their academic performance, and that such
children should be educated to the maximum extent appro- priate with
children who are not disabled. In addition, the ALJ explained that
applicable federal regulations distin- guish between school health
services, which are provided by a qualified school nurse or other
qualified person, and medical services, which are provided by a
licensed physi- cian. See 34 CFR 300.16(a), (b)(4), (b)(11) (1998).
___________

________________________
and flushing and sweating may occur. Garret has not experienced auto- nomic
hyperreflexia frequently in recent years, and it has usually been alleviated by
catheterization. He has not ever experienced autonomic hyperreflexia at school. Garret
is capable of communicating his needs orally or in another fashion so long as he has not
been rendered unable to do so by an extended lack of oxygen. Id., at 20a.
Included are such services as care for students who need urinary cath- eterization, food
and drink, oxygen supplement positioning, and suction- ing. Id., at 28a; see also id.,
at 53a.

The District must provide the former, but need not provide the latter
(except, of course, those medical services that are for diagnostic or
evaluation purposes, 20 U. S. C. 1401(a)(17)). According to the ALJ, the

517

distinction in the regulations does not just depend on the title of the
person providing the service; instead, the medical services exclusion
is limited to services that are in the special training, knowledge, and
judgment of a physician to carry out. App. to Pet. for Cert. 51a. The ALJ
thus concluded that the IDEA required the District to bear financial
responsibility for all of the services in dispute, including continuous
nursing services.5
The District challenged the ALJs decision in Federal Dis- trict Court,
but that court approved the ALJs IDEA ruling and granted summary
judgment against the District. Id., at 9a, 15a. The Court of Appeals
affirmed. 106 F. 3d 822 (CA8 1997). It noted that, as a recipient of
federal funds under the IDEA, Iowa has a statutory duty to provide
all disabled children a free appropriate public education, which
includes related services. See id., at 824. The Court of Appeals read
our opinion in Irving Independent School Dist. v. Tatro, 468 U. S. 883
(1984), to provide a two-step analysis of the related services
definition in 1401(a)(17)asking first, whether the requested
services are included within the phrase supportive services; and
second, whether the services are excluded as medical serv- ices. 106
F. 3d, at 824825. The Court of Appeals suc- cinctly answered both
questions in Garrets favor. The court found the first step plainly
satisfied, since Garret can- not attend school unless the requested
services are available during the schoolday. Id., at 825. As to the second
step, the court reasoned that Tatro established a bright-line test: the
services of a physician (other than for diagnostic and eval- uation
purposes) are subject to the medical services exclu- sion, but services
that can be provided in the school setting by a nurse or qualified
layperson are not. 106 F. 3d, at 825.
In its petition for certiorari, the District challenged only the second
step of the Court of Appeals analysis. The Dis- trict pointed out that
some federal courts have not asked whether the requested health
services must be delivered by a physician, but instead have applied a
multifactor test that considers, generally speaking, the nature and
extent of the services at issue. See, e. g., Neely v. Rutherford County
School, 68 F. 3d 965, 972973 (CA6 1995), cert. denied, 517
___________________
In addition, the ALJs opinion contains a thorough discussion of other tests and criteria pressed by the
District, id., at 52a, including the burden on the District and the cost of providing assistance to Garret.
Although the ALJ found no legal authority for establishing a cost-based test for determining what related
services are required by the statute, he went on to reject the Districts arguments on the merits. See id., at
42a53a. We do not reach the issue here, but the ALJ also found that Garrets in-school needs must be met by
the District under an Iowa statute as well as the IDEA. Id., at 54a55a.

518

U. S. 1134 (1996); Detsel v. Board of Ed. of Auburn Enlarged City School

Dist., 820 F. 2d 587, 588 (CA2) (per curiam), cert. denied, 484 U. S.
981 (1987). We granted the Districts petition to resolve this conflict.
523 U. S. 1117 (1998).
II
The District contends that 1401(a)(17) does not require it to provide
Garret with continuous one-on-one nursing serv- ices during the
schoolday, even though Garret cannot re- main in school without such
care. Brief for Petitioner 10. However, the IDEAs definition of related
services, our de- cision in Irving Independent School Dist. v. Tatro, 468
U. S. 883 (1984), and the overall statutory scheme all support the
decision of the Court of Appeals.
The text of the related services definition, see n. 1, supra, broadly
encompasses those supportive services that may be required to assist a
child with a disability to benefit from special education. As we have
already noted, the Dis- trict does not challenge the Court of Appeals
conclusion that the in-school services at issue are within the covered
cate- gory of supportive services. As a general matter, serv- ices that
enable a disabled child to remain in school during the day provide the
student with the meaningful access to education that Congress
envisioned. Tatro, 468 U. S., at 891 ( Congress sought primarily to
make public education available to handicapped children and to make
such access meaningful (quoting Board of Ed. of Hendrick Hudson
Central School Dist., Westchester Cty. v. Rowley, 458 U. S. 176, 192
(1982))).
This general definition of related services is illuminated by a
parenthetical phrase listing examples of particular services that are
included within the statutes coverage.
1401(a)(17). [M]edical services are enumerated in this list, but such
services are limited to those that are for diag- nostic and evaluation
purposes. Ibid. The statute does not contain a more specific
definition of the medical serv- ices that are excepted from the
coverage of 1401(a)(17).
The scope of the medical services exclusion is not a mat- ter of first
impression in this Court. In Tatro we concluded that the Secretary of
Education had reasonably determined that the term medical services
referred only to services that must be performed by a physician, and not to
school health services. 468 U. S., at 892894. Accordingly, we held that a
specific form of health care (clean intermittent catheterization) that is
often, though not always, performed by a nurse is not an excluded medical
service. We refer- enced the likely cost of the services and the competence
of school staff as justifications for drawing a line between phy- sician and
other services, ibid., but our endorsement of that line was unmistakable.76
76

The regulations define related services for handicapped children to include school
health services, 34 CFR 300.13(a) (1983), which are de- fined in turn as services
provided by a qualified school nurse or other qualified person, 300.13(b)(10).
Medical services are defined as serv- ices provided by a licensed physician.

519

It is thus settled that the phrase medical services in 1401(a)(17) does

not embrace all forms of care that might loosely be described as
medical in other contexts, such as a claim for an income tax deduction.
See 26 U. S. C. 213(d)(1) (1994 ed. and Supp. II) (defining medi- cal
care).
The District does not ask us to define the term so broadly. Indeed, the
District does not argue that any of the items of care that Garret
needs, considered individually, could be excluded from the scope of 20 U.
S. C. 1401(a)(17).77 It could not make such an argument, considering that
one of the serv- ices Garret needs (catheterization) was at issue in Tatro,
and the others may be provided competently by a school nurse
or other trained personnel. See App. to Pet. for Cert. 15a, 52a. As the
ALJ concluded, most of the requested serv- ices are already provided
by the District to other students, and the in-school care necessitated by
Garrets ventilator dependency does not demand the training,
knowledge, and judgment of a licensed physician. Id., at 51a52a.
While more extensive, the in-school services Garret needs are no more
medical than was the care sought in Tatro.
Instead, the District points to the combined and continu- ous
character of the required care, and proposes a test under which the
outcome in any particular case would depend upon a series of factors,
such as [1] whether the care is con- tinuous or intermittent, [2] whether
existing school health personnel can provide the service, [3] the cost of
the service, and [4] the potential consequences if the service is not properly performed. Brief for Petitioner 11; see also id., at 3435.
The Districts multifactor test is not supported by any recognized
source of legal authority. The proposed factors can be found in neither
300.13(b)(4). Thus, the Secre- tary has [reasonably] determined that the services of a
school nurse other- wise qualifying as a related service are not subject to exclusion
as a medical service, but that the services of a physician are excludable as such.
. . . By limiting the medical services exclusion to the services of a physician or
hospital, both far more expensive, the Secretary has given a permissible construction
to the provision. 468 U. S., at 892893 (em- phasis added) (footnote omitted); see also
id., at 894 ([T]he regulations state that school nursing services must be provided only
if they can be performed by a nurse or other qualified person, not if they must be performed by a physician).
Based on certain policy letters issued by the Department of Education, it seems that
the Secretarys post-Tatro view of the statute has not been entirely clear. E. g., App. to
Pet. for Cert. 64a. We may assume that the Secretary has authority under the IDEA to
adopt regulations that define the medical services exclusion by more explicitly taking
into account the nature and extent of the requested services; and the Secretary surely
has the authority to enumerate the services that are, and are not, fairly in- cluded
within the scope of 1407(a)(17). But the Secretary has done nei- ther; and, in this Court,
he advocates affirming the judgment of the Court of Appeals. Brief for United States as
Amicus Curiae 78, 30; see also Auer v. Robbins, 519 U. S. 452, 462 (1997) (an agencys
views as amicus curiae may be entitled to deference). We obviously have no authority to
rewrite the regulations, and we see no sufficient reason to revise Tatro, either.

___________________________
77

See Tr. of Oral Arg. 45, 12.

520

the text of the statute nor the regula- tions that we upheld in Tatro.
Moreover, the District offers no explanation why these characteristics
make
one
service
any more medical than another. The continuous character of certain
services associated with Garrets ventilator de- pendency has no apparent
relationship to medical services, much less a relationship of equivalence.
Continuous serv- ices may be more costly and may require additional
school personnel, but they are not thereby more medical. What- ever its
imperfections, a rule that limits the medical services exemption to
physician services is unquestionably a reason- able and generally
workable interpretation of the statute. Absent an elaboration of the
statutory terms plainly more convincing than that which we reviewed in
Tatro, there is no good reason to depart from settled law.78
Finally, the District raises broader concerns about the financial burden that it must bear to provide the services that Garret
needs to stay in school. The problem for the District in providing these
services is not that its staff cannot be trained to deliver them; the
problem, the District contends, is that the existing school health staff
cannot meet all of their responsibilities and provide for Garret at the
same time.79 Through its multifactor test, the District seeks to establish
a kind of undue-burden exemption primarily based on the cost of the
requested services. The first two factors can be seen as examples of cost78

At oral argument, the District suggested that we first consider the nature of the
requested service (either medical or not); then, if the serv- ice is medical, apply the
multifactor test to determine whether the serv- ice is an excluded physician service or an
included school nursing service under the Secretary of Educations regulations. See Tr.
of Oral Arg. 7, 1314. Not only does this approach provide no additional guidance for
identifying medical services, it is also disconnected from both the statu- tory text and
the regulations we upheld in Irving Independent School Dist. v. Tatro, 468 U. S. 883
(1984). Medical services are generally ex- cluded from the statute, and the regulations
elaborate on that statutory term. No authority cited by the District requires an
additional inquiry if the requested service is both related and non-medical. Even
if
1401(a)(17) demanded an additional step, the factors proposed by the Dis- trict are hardly
more useful in identifying nursing services than they are in identifying medical
services; and the District cannot limit educa- tional access simply by pointing to the
limitations of existing staff. As we noted in Tatro, the IDEA requires schools to hire
specially trained personnel to meet disabled student needs. Id., at 893.
79

See Tr. of Oral Arg. 45, 13; Brief for Petitioner 67, 9. The District,
however, will not necessarily need to hire an additional employee to meet
Garrets needs. The District already employs a one-on-one teacher associate
(TA) who assists Garret during the schoolday. See App. to Pet. for
Cert. 26a27a. At one time, Garrets TA was a licensed practical nurse
(LPN). In light of the state Board of Nursings recent ruling that the
Districts registered nurses may decide to delegate Garrets care to an
LPN, see Brief for United States as Amicus Curiae 910 (filed Apr. 22,
1998), the dissents future-cost estimate is speculative. See App. to Pet.
for Cert. 28a, 58a60a (if the District could assign Garrets care to a TA
who is also an LPN, there would be a minimum of additional expense).

521

based distinctions: Intermittent care is often less expensive than

continuous care, and the use of existing personnel is cheaper than
hiring additional employees. The third factorthe cost of the service
would then encompass the first two. The relevance of the fourth factor
is likewise related to cost because extra care may be necessary if
potential consequences are especially serious.
The District may have legitimate financial concerns, but our role
in this dispute is to interpret existing law. Defining related services in
a manner that accommodates the cost concerns Congress may have had,
cf. Tatro, 468 U. S., at 892, is altogether different from using cost itself as
the definition. Given that 1401(a)(17) does not employ cost in its
definition of related services or excluded medical services, accepting the Districts cost-based standard as the sole test for determining
the scope of the provision would require us to engage in judicial
lawmaking without any guidance from Congress. It would also create
some tension with the pur- poses of the IDEA. The statute may not
require public schools to maximize the potential of disabled students
commensurate with the opportunities provided to other children, see
Rowley, 458 U. S., at 200; and the potential financial bur- dens imposed
on participating States may be relevant to ar- riving at a sensible
construction of the IDEA, see Tatro, 468 U. S., at 892. But Congress
intended to open the door of public education to all qualified children
and require[d] participating States to educate handicapped children
with nonhandicapped children whenever possible. Rowley, 458
U. S., at 192, 202; see id., at 179181; see also Honig v. Doe,
484 U. S. 305, 310311, 324 (1988); 1412(1), (2)(C), (5)(B).10
__________________________________________________
10
The dissents approach, which seems to be even broader than the Dis- tricts, is
unconvincing. The dissents rejection of our unanimous decision in Tatro comes 15 years
too late, see Patterson v. McLean Credit Union, 491 U. S. 164, 172173 (1989) (stare
decisis has special force in statutory interpretation), and it offers nothing constructive in
its place. Aside from rejecting a provider-specific approach, the dissent cites unrelated
stat- utes and offers a circular definition of medical services. Post, at 81 (opinion of
Thomas, J.) ( services that are medical in nature ). More- over, the dissents approach
apparently would exclude most ordinary school nursing services of the kind routinely
provided to nondisabled chil- dren; that anomalous result is not easily attributable to
congressional in- tent. See Tatro, 468 U. S., at 893.
In a later discussion the dissent does offer a specific proposal: that we now interpret
(or rewrite) the Secretarys regulations so that school dis- tricts need only provide
disabled children with health-related services that school nurses can perform as part
of their normal duties. Post, at 85. The District does not dispute that its nurses can
perform the requested services, so the dissents objection is that District nurses would
not be performing their normal duties if they met Garrets needs. That is, the District
would need an additional employee. Ibid. This pro- posal is functionally similar to a
proposed regulationultimately with- drawnthat would have replaced the school
health services provision. See 47 Fed. Reg. 33838, 33854 (1982) (the statute and
regulations may not be read to affect legal obligations to make available to handicapped
chil- dren services, including school health services, made available to nonhand- icapped
children). The dissents suggestion is unacceptable for several reasons. Most
important, such revisions of the regulations are better left to the Secretary, and an
additional staffing need is generally not a suffi- cient objection to the requirements of
1401(a)(17). See n. 8, supra.

522

Thomas, J., dissenting

This case is about whether meaningful access to the public schools will
be assured, not the level of education that a school must finance once
access is attained. It is undisputed that the services at issue must be
provided if Garret is to remain in school. Under the statute, our
precedent, and the purposes of the IDEA, the District must fund such
related services in order to help guarantee that students like Garret are
integrated into the public schools.
The judgment of the Court of Appeals is accordingly
Affirmed.
Justice Thomas, with whom Justice Kennedy joins, dissenting.
The majority, relying heavily on our decision in Irving In- dependent
School Dist. v. Tatro, 468 U. S. 883 (1984), con- cludes that the
Individuals with Disabilities Education Act (IDEA), 20 U. S. C. 1400
et seq., requires a public school district to fund continuous, one-on-one
nursing care for dis- abled children. Because Tatro cannot be squared
with the text of IDEA, the Court should not adhere to it in this case.
Even assuming that Tatro was correct in the first instance, the
majoritys extension of it is unwarranted and ignores the constitutionally
mandated rules of construction applicable to legislation enacted
pursuant to Congress spending power.
I
As the majority recounts, ante, at 68, IDEA authorizes the provision of
federal financial assistance to States that agree to provide, inter alia,
special education and related serv- ices for disabled children.
1401(a)(18). In Tatro, supra, we held that this provision of IDEA
required a school dis- trict to provide clean intermittent
catheterization to a dis- abled child several times a day. In so holding,
we relied on Department of Education regulations, which we concluded
had
reasonably
interpreted
IDEAs
definition
of
related
services 80 to require school districts in participating States to provide
school nursing services (of which we assumed catheterization was a
subcategory) but not services of a physician. Id., at 892893. This
holding is contrary to the plain text of IDEA, and its reliance on the
Department of Educations regulations was misplaced.
80

IDEA currently defines related services as transportation, and such developmental,

corrective, and other supportive services (including speech pathology and audiology,
psychological services, physical and occupational therapy, recreation, including therapeutic
recreation, social work services, counseling services, including rehabilitation counseling, and
medical serv- ices, except that such medical services shall be for diagnostic and evalua- tion
purposes only) as may be required to assist a child with a disability to benefit from special
education . . . . 20 U. S. C. 1401(a)(17) (empha- sis added).

523

A
Before we consider whether deference to an agency regu- lation is
appropriate, we first ask whether Congress has di- rectly spoken to the
precise question at issue. If the intent of Congress is clear, that is the
end of the matter; for the court, as well as the agency, must give effect
to the unambig- uously expressed intent of Congress. National Credit
Union Admin. v. First Nat. Bank & Trust Co., 522 U. S. 479, 499500
(1998) (quoting Chevron U. S. A. Inc. v. Natural Re- sources Defense
Council, Inc., 467 U. S. 837, 842843 (1984)).
Unfortunately, the Court in Tatro failed to consider this necessary
antecedent question before turning to the Depart- ment of Educations
regulations implementing IDEAs re- lated services provision. The Court
instead began with the regulations of the Department of Education,
which, it said, are entitled to deference. 468 U. S., at 891892. The
Court need not have looked beyond the text of IDEA, which expressly
indicates that school districts are not required to provide medical
services, except for diagnostic and evalua- tion purposes. 20 U. S. C.
1401(a)(17). The majority as- serts that Tatro precludes reading the
term medical services to include all forms of care that might loosely
be described as medical. Ante, at 75. The majority does not
explain, however, why services that are medical in nature are not
medical services. Not only is the definition that the majority rejects
consistent with other uses of the term in federal law,81 it also avoids
the anomalous result of holding that the services at issue in Tatro (as
well as in this case), while not medical services, would nonetheless
qual- ify as medical care for federal income tax purposes. Ante, at 74
75.
The primary problem with Tatro, and the majoritys reli- ance on it
today, is that the Court focused on the provider of the services rather
than the services themselves. We do not typically think that automotive
services are limited to those provided by a mechanic, for example.
Rather, anything done to repair or service a car, no matter who does the
work, is thought to fall into that category. Similarly, the term food
service is not generally thought to be limited to work performed by a
chef. The term medical similarly does not support Tatros providerspecific approach, but encompasses services that are of, relating to, or
concerned with physi- cians or with the practice of medicine. See
Websters Third New International Dictionary 1402 (1986) (emphasis
added); see also id., at 1551 (defining nurse as a person skilled in
81

See, e. g., 38 U. S. C. 1701(6) (The term medical services includes, in addition to

medical examination, treatment, and rehabilitative services
. . . surgical services, dental services . . . , optometric and podiatric services, . . .
preventive health services, . . . [and] such consultation, profes- sional counseling, training,
and mental health services as are necessary in connection with the treatment); 101(28)
(The term nursing home care means the accommodation of convalescents . . . who
require nursing care and related medical services); 26 U. S. C. 213(d)(1) (The term
medical care means amounts paid. . . for the diagnosis, cure, mitigation, treat- ment,
or prevention of disease).

524

caring for and waiting on the infirm, the injured, or the sick; specif: one
esp. trained to carry out such duties under the supervision of a
physician).
IDEAs structure and purpose reinforce this textual inter- pretation. Congress
enacted IDEA to increase the educa- tional opportunities available to disabled
children, not to provide medical care for them. See 20 U. S. C. 1400(c) (It is the
purpose of this chapter to assure that all children with disabilities have . . . a
free appropriate public education); see also 1412 (In order to qualify for
assistance . . . a State shall demonstrate . . . [that it] has in effect a policy
that assures all children with disabilities the right to a free appro- priate public
education); Board of Ed. of Hendrick Hudson Central School Dist., Westchester
Cty. v. Rowley, 458 U. S. 176, 179 (1982) (The Act represents an ambitious
federal effort to promote the education of handicapped children). As such,
where Congress decided to require a supportive serviceincluding speech
pathology, occupational therapy, and audiologythat appears medical in nature,
it took care to do so explicitly. See 1401(a)(17). Congress specified these
services precisely because it recognized that they would otherwise fall under
the broad medical services ex- clusion. Indeed, when it crafted the definition
of related services, Congress could have, but chose not to, include nur- sing
services in this list.
B
Tatro was wrongly decided even if the phrase medical services was
subject to multiple constructions, and there- fore, deference to any reasonable
Department of Education regulation was appropriate. The Department of
Education has never promulgated regulations defining the scope of IDEAs
medical services exclusion. One year before Tatro was decided, the Secretary of
Education issued proposed regulations that defined excluded medical services as
serv- ices relating to the practice of medicine. 47 Fed. Reg. 33838 (1982).
These regulations, which represent the De- partments only attempt to define
the disputed term, were never adopted. Instead, [t]he regulations actually
define only those medical services that are owed to handicapped children,
Tatro, 468 U. S., at 892, n. 10 (emphasis in origi- nal), not those that are not.
Now, as when Tatro was de- cided, the regulations require districts to provide
services performed by a licensed physician to determine a childs medically
related handicapping condition which results in the childs need for special
education and related services. Ibid. (quoting 34 CFR 300.13(b)(4) (1983),
recodified and amended as 34 CFR 300.16(b)(4) (1998).
Extrapolating from this regulation, the Tatro Court pre- sumed that this
meant that medical services not owed under the statute are those services by a
licensed physician that serve other purposes. Tatro, supra, at 892, n. 10 (emphasis deleted). The Court, therefore, did not defer to the regulation itself, but
rather relied on an inference drawn from it to speculate about how a regulation
might read if the Department of Education promulgated one. Deference in those
circumstances is impermissible. We cannot defer to a regulation that does not
exist.82

525

II
Assuming that Tatro was correctly decided in the first in- stance, it does not
control the outcome of this case. Because IDEA was enacted pursuant to
Congress spending power, Rowley, supra, at 190, n. 11, our analysis of the
statute in this case is governed by special rules of construction. We have
repeatedly emphasized that, when Congress places con- ditions on the receipt of
federal funds, it must do so unam- biguously. Pennhurst State School and
Hospital v. Halderman, 451 U. S. 1, 17 (1981). See also Rowley, supra, at 190,
n. 11; South Dakota v. Dole, 483 U. S. 203, 207 (1987); New York v. United
States, 505 U. S. 144, 158 (1992). This is because a law that condition[s] an offer
of federal funding on a promise by the recipient . . . amounts essentially to a
contract between the Government and the recipient of funds. Gebser v. Lago
Vista Independent School Dist., 524 U. S. 274, 286 (1998). As such, [t]he
legitimacy of Congress power to legislate under the spending power . . . rests
on whether the State voluntarily and knowingly accepts the terms of the
contract. There can, of course, be no knowing acceptance if a State is unaware
of the conditions or is unable to ascertain what is expected of it. Pennhurst,
supra, at
17 (citations omitted). It follows that we must interpret Spending Clause
legislation narrowly, in order to avoid sad- dling the States with obligations that
they did not anticipate.
The majoritys approach in this case turns this Spending Clause presumption
on its head. We have held that, in enacting IDEA, Congress wished to require
States to educate handicapped children with nonhandicapped children whenever
possible, Rowley, supra, at 202. Congress, how- ever, also took steps to limit
the fiscal burdens that States must bear in attempting to achieve this laudable
goal. These steps include requiring States to provide an education that is only
appropriate rather than requiring them to maximize the potential of disabled
students, see 20 U. S. C. 1400(c); Rowley, supra, at 200, recognizing that
integration into the public school environment is not always possible, see
1412(5), and clarifying that, with a few exceptions, public schools need not
provide medical services for disabled students, 1401(a)(17) and (18).
For this reason, we have previously recognized that Con- gress did not
intend to impos[e] upon the States a burden of unspecified proportions and
weight in enacting IDEA. Rowley, supra, at 190, n. 1. These federalism
concerns re- quire us to interpret IDEAs related services provision, consistent
with Tatro, as follows: Department of Education reg- ulations require districts
to provide disabled children with health-related services that school nurses can
perform as part of their normal duties. This reading of Tatro, although
___________________________
Nor do I think that it is appropriate to defer to the Department of Educations litigating position in this case. The agency has had
ample opportunity to address this problem but has failed to do so in a formal regulation. Instead, it has maintained conflicting
positions about whether the services at issue in this case are required by IDEA. See ante, at 74,
n. 6. Under these circumstances, we should not assume that the litigating position reflects the agencys fair and considered
judgment. Auer v. Robbins, 519 U. S. 452, 462 (1997).
82

526

less broad than the majoritys, is equally plausible and certainly more consistent
with our obligation to interpret Spending Clause legislation narrowly. Before
concluding that the district was required to provide clean intermittent
catheterization for Amber Tatro, we observed that school nurses in the district
were authorized to perform services that were difficult to distinguish from the
provision of [clean intermittent catheterization] to the handicapped. Tatro, 468 U.
S., at 893. We concluded that [i]t would be strange indeed if Congress, in
attempting to extend special services to handicapped children, were unwilling to
guarantee them services of a kind that are routinely provided to the nonhandicapped. Id., at 893894.
Unlike clean intermittent catheterization, however, a school nurse cannot
provide the services that respondent requires, see ante, at 6970, n. 3, and
continue to perform her normal duties. To the contrary, because respondent
requires continuous, one-on-one care throughout the entire schoolday, all agree
that the district must hire an additional employee to attend solely to respondent.
This will cost a minimum of $18,000 per year. Although the majority recog- nizes
this fact, it nonetheless concludes that the more exten- sive nature of the services
that respondent needs is irrele- vant to the question whether those services fall
under the medical services exclusion. Ante, at 75. This approach dis- regards the
constitutionally mandated principles of construc- tion applicable to Spending Clause
legislation and blindsides unwary States with fiscal obligations that they could
not have anticipated.
*
*
For the foregoing reasons, I respectfully dissent.

527

UNITED STATES DISTRICT COUR

DISTRICT OF MAINE
LAMOINE SCHOOL COMMITTEE,
Plaintiff,
v.
MS Z., on behalf of her minor
son N.S.,
Defendant.
CV-03-197-B-W

ORDER AND MEMORANDUM OF DECISION

Plaintiff Lamoine School Committee (Lamoine) filed this action pursuant to 20 U.S.C.
1415(i)(2) of the Individuals with Disabilities Education Act (IDEA or the Act) 83
challenging a decision of a Maine Department of Education Hearing Officer (Hearing Officer).
The Hearing Officer granted Defendant Ms. Z.s request for reimbursement in connection with
the placement of her son (N.S.) at the School of Urban Wilderness Survival (SUWS) in North
Carolina and the Academy at Cedar Mountain, a private school in Utah. Ms. Z. filed a crossappeal for attorney fees. This Court AFFIRMS the decision of the Hearing Officer, DENIES the
Plaintiffs appeal, and GRANTS the Defendants request for attorney fees.
I. BACKGROUND84
A. Underlying Facts

83

20 U.S.C. 1400 et seq.

The facts are drawn largely from the Hearing Officer's findings to the extent they are supported by a preponderance
of the evidence in the record. When necessary, those findings are supplemented with additional record information.
The Hearing Officer's decision is contained at pages 63-79 of Part I of the Administrative Record. The Record cites
refer to the handwritten number at the top right of each page.
84

528

N.S. is currently sixteen years old. (R. at 64). In third grade, he was identified with
learning disabilities in reading, written language, and math and began receiving special education
services. (R. at 64, 407-08). In fifth grade, N.S. attended school in Bar Harbor, Maine and
continued to receive special education services. (R. at 64, 408-09). During his early education,
N.S. progressed academically, but teachers reported concern about his low self-esteem and
isolation from classmates. (R. at 64-65, 409). After N.S. refused to engage therapeutically with
Peter Rees, a mental health counselor, he was treated by his family physician for sleep and bed
wetting problems and was prescribed a mild anti-depressant, which had a beneficial effect. (R. at
65, 409-10).
William E. Davis, Ph.D. evaluated N.S. at the beginning of his sixth-grade year (1999)
and concluded N.S. manifested very strong failure-set behavioral patterns, experienced some
fairly substantial feelings of inadequacy, especially regarding his overall cognitive and academic
abilities, and may often know more than his overt performance might suggest but that he likely
shuts down when anticipating difficulty thus avoiding possible embarrassment. (R. at 65,
313). Dr. Davis summarized the results of N.S.s evaluation as follows: (1) an average to high
average range of cognitive functioning; (2) evidence of strong cognitive abilities within both
verbal and nonverbal domains, but with major cognitive strengths lying within the nonverbal,
visual perceptual domain; (3) evidence of very strong failure-set behavioral patterns; and, (4)
evidence of feelings of anxiety and frustration, primarily involving academic performance. (R. at
315-16). Dr.

Davis recommended instructional

supports

and

whatever instructional

modifications are deemed necessary to help N.S. gain more confidence in himself and in his
abilities, noting N.S. is a very sensitive young man who may be experiencing more frustration
and anxiety than his overt behaviors might suggest. (R. at 65, 316).

529

N.S. attended Connors-Emerson School in Bar Harbor his seventh-grade year (20002001). (R. at 65, 300). Under an Individualized Education Plan (IEP) dated December 8,
2000 he received resource room services in reading, writing, and math. (R. at 65, 303). The
December Pupil Evaluation Team (PET) minutes document that N.S. shut[s] down when he
doesnt understand something and has a difficult time with his learning disabilities and self
esteem. (R. at 301). However, the school provided no counseling services, and his mother did
not request any at this time. (R. at 413). N.S. expressed an interest in attending boarding school,
and the special education teacher provided his mother with a list of schools for children with
learning disabilities. (R. at 301).
In the spring of N.S.s seventh-grade year, he stopped taking his medications, which
resulted in a major period of depression. (R. at 65, 411-12). N.S. began sleeping all the time,
withdrawing from his friends, and acting disrespectfully towards his mother. (R. at 65, 412). In
August 2001, the summer before N.S.s eighth-grade year, his mother sought the help of Dr.
David Hawkins, a psychiatrist. (R. at 65, 412-13). N.S. refused to meet with Dr. Hawkins
without his mother present and never really engaged therapeutically. (R. at 65, 414).
B. Transfer to Lamoine: 2001-2002
During the early fall of eighth grade (2001-2002), N.S. did not attend school regularly
due to depression; in November 2001, he transferred to the Town of Lamoine school system. (R.
at 65, 418). Ms. Z. asked the Lamoine PET to order a home-based tutorial program, based in
part on an assessment by Dr. Hawkins. (R. at 210, 218). In a letter dated November 21, 2001 to
the Special Education Director, Laura Sereyko, Dr. Hawkins noted that N.S. suffers [from]
severe depression, which impairs his ability to function academically, and has destroyed his
ability to attend school. (R. at 218). He wrote that N.S. requires intensive supportive one to

530

one attention to progress in learning, which leads to the obvious need for tutoring in the
home. (R. at 218). During a November 30, 2001 Lamoine PET meeting, Ms. Sereyko stated
there was no documentation or evaluation to support emotional issues and recommended a
behavioral/psychological evaluation to determine if [N.S.] is emotionally disturbed or [if] his
behavior/actions are caused as a result of control issues. (R. at 212). Pursuant to a November
30, 2001 IEP, N.S. began receiving in-home tutoring by the Lamoine School District. (R. at 6566, 195-96).
In January 2002, Bruce Saunders, Ph.D. evaluated N.S. to determine whether his refusal
to attend school was disability-based or a result of control issues. (R. at 66, 203-08). Dr.
Saunders reviewed PET minutes, prior psycho-educational evaluations, and Dr. Hawkinss
November 21, 2001 letter; conducted clinical interviews with N.S. and his mother; and
administered the Rorschach Technique and the Millon Adolescent Clinical Inventory (MACI).
(R. at 66, 203-08). Dr. Saunders found no clinical or psychometric evidence to warrant a
diagnosis of depression, but accepted by history the diagnoses of major depression, adjustment
disorder with anxiety, and learning disability. (R. at 66, 207-08). In response to N.S.s desire to
attend a preparatory school, Dr. Saunders noted the following:
[N.S.] would be devastated in a preparatory school. He clearly
needs the support of his family . . . . [N.S.] is highly vulnerable.
Forcing him to attend a structured public school program would
likely result in his breakdown. I believe that neither Dr. Hawkins
nor I could support that move, although he and I did not discuss
this case directly. I believe that if we force this child to attend
school, we will not be providing a service for him.
(R. at 208). Dr. Saunders recommended continued tutoring as well as individual psychotherapy
services with Dr. Hawkins. (R. at 66, 208).
The next PET meeting was held on February 8, 2002 to discuss Dr. Saunderss
evaluation. (R. at 190-91). The PET changed the IEP to increase tutorial time with a focus on
531

reading, writing, and math. (R. at 194). Modifications included access to computers for written
work, untimed use of the resource room, and a regular discipline program. (R. at 194). At a PET
meeting on June 12, 2002 Ms. Z. stated her intention to enroll N.S. at Mt. Desert Island High
School (MDI) in the fall. (R. at 66, 186-87). The PET offered to set up a meeting with the
special education staff at MDI and encouraged N.S. to visit the school so that he would feel
comfortable when he started. (R. at 66, 187). During the summer of 2002, N.S. worked in his
mothers pottery studio and did well there. (R. at 66, 425-26).
C. MDI High School: Fall 2002
In September 2002, N.S. began attending MDI. (R. at 66, 175). The September 9, 2002
IEP provided that N.S. would receive direct instructional services in English and Social Studies
for 25% of the day, have access to a computer for all writing projects, be given editing support,
and have the option of taking untimed tests in the resource room. (R. at 66, 176, 179). At Ms.
Z.s request, the PET held another meeting on September 23, 2002 to discuss N.S.s tardiness
due to his depression, sleep disorder, and medication. (R. at 66-67, 170-71). The PET
recommended against N.S. receiving discipline for his tardiness. (R. at 67, 171). Based on the
effect of his medication, Dr. Hawkins supported the plan to accommodate N.S.s occasional late
arrivals. (R. at 67, 168).
In October 2002, the school referred N.S. to a counselor, Jeff McCarthy, L.C.P.C. (R. at
67, 132). Mr. McCarthy met with N.S. eight times, from October 29, 2002 to January 7, 2003,
but N.S. was unwilling to engage with Mr. McCarthy or to participate in therapy. (R. at 67, 45253). By letter dated January 15, 2003, Mr. McCarthy identified N.S. as having significant
emotional difficulties that impact both his desire and ability to be successful at MDI High
School. (R. at 132). He diagnosed N.S. with major depressive disorder with chronic moderate
severity and stated [c]onsideration should be given for all options including more restrictive
532

options such as a residential program, and if N.S. does not remain involved in school, he will
require an intensive community based treatment team to be successful. (R. at 67, 132).
On October 24, 2002, as part of a triennial review, Gary Burgess, M.S., conducted an
educational assessment on N.S. (R. at 67, 165-67). Based on testing, Mr. Burgess made a
number of suggestions on areas of educational benefit for N.S. (R. at 165-67). A classroom
observation of N.S. was scheduled for November 15, 2002, but N.S. failed to show, and his
classroom teacher commented: I have only had him in class once or twice since the start of the
term. (R. at 67, 162-63).
The PET met on November 18, 2002 to conduct N.S.s triennial review, but the meeting
could not be completed; it reconvened on November 25, 200285 and resulted in a new IEP
initiated on December 2, 2002. (R. at 67, 137, 139-45). The new IEP continued N.S.s academic
program and accommodations without change and agreed to pay for counseling with a licensed
clinician. (R. at 67, 137-38). It provided N.S. would receive counseling services from a
contracted counselor for an hour once a week and exempted him from the school attendance
policy as it pertained to homeroom tardiness. (R. at 67, 141, 144).
In December 2002, N.S. stopped seeing Dr. Hawkins. (R. at 68, 693, 696). In either
December 2002 or January 2003, without his mothers or Dr. Hawkinss knowledge, he stopped
taking his medication. (R. at 68, 696-97). In December 2002, he stopped attending school
completely and became disrup tive and disrespectful at home and extremely withdrawn. (R. at
68, 434-45). In January 2003, Dr. Hawkins recommended Ms. Z. consider residential mental

85

The Hearing Officers Decision states that the PET reconvened on December 2, but the record indicates the
new meeting was November 25, 2002 and the new IEP was initiated on December 2, 2002. (R. at 67).

533

health treatment, noting that the goal would be to maintain regular school performance, promote
basic self care, provide vigorous treatment for depression, teach social comportment, and
improve [N.S.s] confidence. (R. at 68, 135). Dr. Hawkins gave Ms. Z. a list of residential
treatment programs in Maine and New England, including KidsPeace, Hampstead Hospital, and
Brattleboro Retreat. 86 (R. at 68, 712-73). Concerned that N.S.s issues with his mother could
interfere with his attendance, Dr. Hawkins concluded a day program would not be appropriate.
(R. at 68, 713).
The PET met on January 17, 2003 to discuss N.S.s problem with school attendance. (R.
at 68, 130-31). The PET talked at length about possible hospitalization or residential
placement and gave Ms. Z. the names of residential programs at Spurwink and Sweetser. (R. at
68, 131, 435). Ms. Z. followed up with Spurwink and Sweetser, but N.S. did not meet their
criteria for placement, because he was not violent towards himself or others [and] was not
suicidal. (R. at 68, 435-36). Ms. Z. told the PET that Dr. Hawkins had discussed two out-ofstate hospitals as placement options, but Ms. Z. was unsure if N.S. would go to a residential
program if one were arranged and she did not feel she could force him to go. (R. at 131). The
PET decided to have a conference call among Dr. Hawkins, Mr. McCarthy, Ms. Z., and Tug
White, the Assistant Director for Union 92s Educational Cooperative. (R. at 131). Mr. White
said he would contact WINGS, an organization that assists families in their homes to deal with
children with emotional disabilities, and would initiate a referral for their assistance, if N.S. were
referred to a more restrictive placement. 87 (R. at 131).

86

Dr. Hawkins testified that the SUWS program was a program similar to these clinical settings. (R. at 716).
Ms. Z. has pointed out she had stopped working with WINGS in the summer of 2002, because WINGS was
requiring I apply for [Medicaid] and N.S.s medical financial needs were being met through his private insurance
and me. (R. at 123).
87

534

D. School of Urban Wilderness Survival: March - April 2003

On February 11, 2003 Ms. Z. contacted Leslie Goldberg, an educational consultant, to
obtain assistance in identifying an appropriate placement for N.S. (R. at 68, 437, 513). In
anticipation of making a referral, Ms. Goldberg reviewed N.S.s records and evaluations. (R. at
68, 514-16). She did not consider any day treatment programs , because of N.S.s serious
resistance to attending school or even getting out of bed in the morning. (R. at 68, 521-22).
Instead, she focused on what are termed, emotional growth schools, which utilize art and
group therapy. (R. at 68, 513-17, 526-27).
At Ms. Goldbergs recommendation, Ms. Z. became interested in SUWS, a wilderness
program in North Carolina. (R. at 69, 521). SUWS, according to its literature, is designed to be a
powerful intervention for students that need structure, supportive counseling, motivational
improvement, and the development of self-esteem, self-reliance, and self respect . . . . [S]tudents
are expected to complete a rigorous course of experiential instruction that addresses fundamental
curriculum areas. (R. at 69, 352). The curriculum areas include Creative Writing, Healthy
Living, Psychology, Physical Education, Social Studies, Outdoor Leadership, English,
Environmental Studies, First Aid, Personal Development, and Home Economics. (R. at 69, 352).
On February 25, 2003, Ms. Z. filed an application for N.S. to attend SUWSs five to seven week
program. 88 (R. at 622). N.S. had been accepted into the SUWS program by February 27, 2003,
the next PET meeting. (R. at 126).
The reason for the February PET meeting was to discuss N.S.s educational programmi ng
and attendance and to hear the results of Ms. Z.s research on programs. (R. at 68-69, 126). Ms.

88

The Hearing Officers Decision states the SUWS program lasts four to six weeks. (R. at 76). The February 27,
2003 PET minutes state that the SUWS program is a four to six week program; however, Ms. Goldberg testified that
the program generally runs five to seven weeks and, when students are being tested, its generally seven weeks.
(R. at 126, 522). N.S. actually attended the program for 48 days. (R. at 69, 578).

535

Z. informed the PET she had contracted with Ms. Goldberg who recommended SUWS. (R. at
69, 126). She said a recommendation for subsequent placement would be developed while N.S.
was attending SUWS. (R. at 69, 126). There was some discussion about the Liberty School,
Lamoine School Districts alternative high school, but the minutes reflect N.S. was not ready for
that placement until he start[ed] acknowledging his issues. (R. at 69, 126). The PET denied
the request for placement at SUWS for the following reasons: 1) the need to ensure it is an
approved education placement; 2) the need for more information, i.e., whether high school
tuition could be trans ferred to SUWS; 3) the need to be aware of the educational program; 4)
the need to determine whether SUWS bills separately for its educational component; and, 5) the
need to determine the mental health versus educational aspects of the SUWS program. (R. at 69,
127-28). The minutes state the placement at SUWS was a parental placement. (R. at 128).
N.S. attended SUWS from March 7, 2003 to April 23, 2003, under an Individualized
Service Plan prepared by his SUWS therapist, Leah Madamba, a Licensed Professional
Counselor (L.P.C.) in the state of North Carolina. (R. at 69, 374-78, 565). This plan included a
series of both long-term and short-term goals: 1) working towards an understanding of why he
was in the program; 2) challenging his past beliefs through the use of individual therapy; 3)
developing critical thinking skills; 4) working on motivation; 5) decreasing his pattern of
negative, hostile, and defiant behavior towards parents, teachers, and other authority figures; 6)
improving physical fitness; 7) developing and demonstrating more effective social skills in
maintaining friendships; 8) increasing his ability to care for himself; and, 9) increasing positive
family interaction. (R. at 69, 374-78).
On March 30, 2003, while N.S. was at SUWS, Michelle Lechman, Ph.D., a licensed
psychologist, completed a psychological evaluation of N.S. (R. at 69, 360-73). Dr. Lechman
recommended placement in an emotional growth boarding school following SUWS. (R. at 70,
536

372). She emphasized an emotional growth school would place N.S. in a structured
environment with clear, consistent limits, and consequences for his negative attitude and passiveaggressive and oppositional behavior. (R at 372). She also recommended regular individual
psychotherapy, group therapy, and family therapy, and a school environment that specializes in
working with students with learning disabilities and ADHD. (R. at 70, 372-73). Dr. Lechman
opined that, without a high level of structure, N.S. is at substantially increased risk for academic
failure, worsening social and emotional difficulties and family conflict. (R. at 372).
At the March 31, 2003 PET meeting, Ms. Sereyko informed Ms. Z. that SUWS was not
an approved school. (R. at 70, 116). She commented that at the end of the program, SUWS
could submit a list of the activities and classes N.S. had participated in and the district could then
determine what credits N.S. would receive. (R. at 70, 116). Ms. Z. apprised the PET that at the
end of the program, SUWS would likely recommend a therapeutic boarding school with the
emphasis of college prep or learning disabled kids. (R. at 70, 117). Ms. Sereyko explained she
had researched a possible day treatment program at KidsPeace in Ellsworth, which was not yet
operating, but was going through a certification procedure with the State Department of
Education. (R. at 70, 117, 906). Ms. Z. refused to consider KidsPeace, explaining she did not
believe N.S.s needs were compatible with the needs of KidsPeace students. (R. at 70, 117). Ms.
Sereyko reminded Ms. Z. that the school district had a responsibility to consider the least
restrictive environment attempting to maintain his program as close to home as possible. (R. at
117). Ms. Z. responded that N.S. was now in a therapeutic environment, and as a parent, she
intended to keep him in an environment that would keep helping him. (R. at 117). The March
31, 2003 PET minutes end by stating that the PET would make its recommendations after N.S.
had completed the SUWS program and the recommendation for further schooling had been
finalized. (R. at 117-18).
537

E. The Academy at Cedar Mountain

Near the end of the SUWS program, Ms. Goldberg proposed three residential programs
for N.S.: Hidden Lake in Georgia, 89 the King George School in Vermont, and Cedar Mountain in
Utah. (R. at 71, 538). She knew of no schools near Lamoine that could provide everything that he
needed. (R. at 538). She thought N.S. needed a school that included an emotional growth
program and a good art program, as well as one that understood the needs of students with
learning disabilities. (R. at 71, 538). Although Ms. Goldberg was not presented with the
KidsPeace option at that time, she later testified KidsPeace would be a hostile milieu that
could negatively impact N.S. (R. at 72, 535). N.S. chose Cedar Mountain and transferred there
after completing SUWS. (R. at 71, 540-41).
Cedar Mountain is a small, structured boarding school. (R at 71, 630). According to its
owner, Jody Tuttle, she founded Cedar Mountain on February 1, 2000 after working in both a
traditional boarding school and a residential treatment facility. (R. at 629). She had identified a
subset of students who did not need residential treatment, but were falling through the cracks in
either public schools or traditional boarding schools. (R. at 629-30). Cedar Mountain offers a
more structured academic program than traditional schools and also teaches
[S]ocial and emotional intelligence, which includes
learning how to learn, listening and oral communication;
adaptability, the ability to creatively think and solve
problems, particularly in response to barriers or
obstacles; personal management . . . self esteem goal
setting, self motivation . . . pride in work
accomplished, group effectiveness . . . inner-personal
skills, negotiation team work, organizational effectiveness
and leadership.

89

The record indicates that Hidden Lake is located in Georgia (R. at 538), but the Hearing Officer stated it was
located in California. (R. at 71).

538

(R. at 630-31). As of September 2003, Cedar Mountain had a total of fifteen students and
twenty-eight employees, including five teachers. (R. at 631).
The students entire time is fully programmed with recreational, social, and academic
activities. (R at 71, 632-34). The students are accompanied at all times by a teacher or
counselor. (R. at 71, 633). Although there is no therapeutic component to the program,
occasionally a counselor will come in from outside, if necessary. (R. at 71, 634). Cedar
Mountain has no special education staff; there is a special education consultant who develops
programs for individual students. (R. at 71, 636-37). Cedar Mountain is accredited by the
Northwest Association of Schools and Colleges. (R. at 71, 638). It is designed to be a one-year
program with three phases: 1) The School of Integrity, focusing on friendship, honesty, and
organization; 2) The School of Dedication, focusing on cooperation and gratitude; and, 3) The
School of Excellence, focusing on goals and transition. (R. at 71, 651-54). Cedar Mountain
conducts telephone conferences with the family and holds four annual parent seminars with
mandatory attendance at three. (R. at 71, 89, 654). The program is year-round, with two long
semesters and a one-month summer term. (R. at 71, 656). Cedar Mountain is designed for
students who do not have heavy clinical needs. (R. at 639). The students need help
academically and are likely to respond to structure. (R. at 639). However, they are not out of
control kids; a student who is real defiant and needs serious therapy would not fit in. (R. at
639-40).
F. KidsPeace Day Treatment Program
KidsPeace has been operating as a residential treatment program for over 127 years. (R.
at 748-49). It began as an orphanage for children whose parents had died from influenza. (R. at
749). Over time, however, it responded to a need for schools and residential facilities for

539

children with emotional disabilities. (R. at 749). As of September 2003, KidsPeaces Ellsworth
program had between fifty-two and fifty-five residential students, one full-time psychiatrist, one
part-time psychiatrist, one psychologist, five social workers, case managers, nursing staff, and a
teacher and ed-tech in every classroom. (R. at 751-52). The teachers are special education
certified and have participated in all state-mandated mental health and educational training. (R. at
752). All teachers have been trained in Life Space Counseling Intervention, which teaches
them how to talk with the students, how to relate to different disabilities, how to respond to the
students, and how to work with them. (R. at 761). KidsPeace is licensed by the Maine
Department of Human Services (DHS) for the mental health part of the program. (R. at 752).
One classroom is for students in seventh and eight grades; one classroom is for students in ninth
grade; and one classroom is for students in tenth and eleventh grades. (R. at 753). The academic
programs are closely aligned with the Maine Learning Results, and the curriculum parallels the
curriculum at Ellsworth High School so there is no loss when students transfer to the public high
school. (R. at 757-58).
Although the precise dates are not clear from the record, during 2003 KidsPeace was
developing a day treatment program. (R. at 793-94). During the winter, spring, and summer of
2003, the KidsPeace day treatme nt program was not ye t operational; in fact, the program
received certification from the State on September 4, 2003, the same day as the due process
hearing. (R. at 72, 794-95). At the September 4, 2003 hearing, Theresa Novotnak, the Special
Education Director for the Ellsworth KidsPeace, testified the day treatment program was open
for business, but no students were actually enrolled. (R. at 72, 794-95). The KidsPeace day
treatment program had not yet hired new personnel, but anticipated the typical presenting
problems would include trauma originating with physical/sexual abuse, sexual perpetrator,
aggressive acting out behavior, fire-setting, depression, or delinquency. (R. at 323). KidsPeace
540

13
designed the day treatment program to educate its students with its residential students. (R. at
761-62).
G. The June 13, 2003 PET Meeting
The PET met on June 13, 2003 and rejected Cedar Mountain as a placement, noting it
was not a special education school and was neither approved nor certified by the State of Maine.
(R. 71, 90). The PET decided against reimbursing Ms. Z. for the tuition at SUWS and Cedar
Mountain and for Ms. Goldbergs fees. (R. at 90). Ms. Sereyko again discussed the day
treatment program to be offered by KidsPeace. (R. 71, 91). Even though it was not yet up and
running, Ms. Sereyko explained that the KidsPeace day treatment program was planning to
provide special education services, home -school coordinated program assistance, a level system,
life space interviews, a therapeutic method to address issues as they arose, art programming, and
an Outward Bound-type program. (R. 71, 91). Ms. Z. responded she would be willing to
consider the KidsPeace program, but only as a transition back home. (R. at 91). She felt N.S.
needed twenty-four hour programming and stated her intention to keep N.S. at Cedar Mountain,
where he was doing well. (R. 71-72, 91). The PET developed an updated IEP, which contained
emotional, math, writing, and reading goals. (R. 72, 99-106). It also offered six hours a day,
five days a week direct instructional services, two weekly counseling sessions, and two weekly
ESY 90 counseling sessions. (R. 72, 95). The PET ordered placement at the day treatment
program at KidsPeace. (R. at 91). On July 25, 2003, Ms. Z. requested a due process hearing,
challenging the PET decision to place N.S. at KidsPeace and its denial of reimbursement for
tuition Ms. Z. paid to SUWS and Cedar Mountain.

90

ESY is an acronym standing for Extended School Year.

541

H. Ms. Z.s Reimbursement Requests

Ms. Z. requested Lamoine to reimburse her for the following expenses:
1) SUWS: March 7, 2003 April 23, 2003: $17,845.00;
2) Leslie Goldberg: $3,000.00; and
3) Cedar Mountain: $60,000. 91
I. Hearing Officers Decision
Following an extensive hearing, the Hearing Officer concluded:
(1) Lamoine failed to provide an I.E.P. that was reasonably calculated to provide
academic benefit for the 2002-2003 school year, due to the failure to address all areas of need,
i.e. social, emotional, and mental health, all of which had a direct impact on educational benefit;
(2) SUWS was an appropriate placement for [N.S.] and Ms. Z. was entitled to
reimbursement of costs associated with this placement;
(3) Lamoine must reimburse Ms. Z. for the fees paid to Ms. Goldberg;
(4)

N.S.s 2003-2004 school year I.E.P. was not reasonably calculated to provide

educational benefit in the least restrictive educational setting, because Lamoine failed to identify
and offer an appropriate educational placement for the period beginning at the completion of the
SUWS program; and
(5) Cedar Mountain was an appropriate placement until Lamoine identified and offered
an appropriate, less restrictive day program in or around Hancock County.
(R. at 75-78).

91

These figures do not appear in the Hearing Officers Decision. The SUWS figure is taken from an exhibit. (R. at
382-84). The Leslie Goldberg fee is taken from her testimony. (R. at 515-16). Cedar Mountains annual fees are
found in Lamoines Complaint, which Ms. Z. admitted. (Compl. at 19 (Docket #1), Answer at 19 (Docket #8)).

542

II. STANDARD OF REVIEW

Lamoine invokes this Courts jurisdiction under 20 U.S.C. 1415(i)(2)(B), which
provides:
In any action brought under this paragraph, the court
and
(i) shall receive the records of the administrative hearing;
(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)(B).
A district courts scrutiny of a hearing officer's decision under this statutory standard falls
short of de novo review. Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1st Cir. 1993)(this
intermediate standard requires a more critical appraisal of the agency determination than clear
error analysis, but which falls short of complete de novo review); see also Roland M. v. Concord
Sch. Comm., 910 F.2d 983, 989 (1st Cir. 1990), cert. denied, 499 U.S. 912 (1991); Farrin v.
Maine Sch. Admin. Dist. No. 59, 165 F. Supp. 2d 37, 43 (D. Me. 2001); Greenbush Sch. Comm.
v. Mr. & Mrs. K., 949 F. Supp. 934, 937 (D. Me. 1996). This grant of jurisdiction "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." Lenn, 998 F.2d at 1086 (citation omitted).
Rather, the court's role in reviewing a hearing officer's decision is one of "involved oversight,"
giving "due weight" to the expertise of the administrative agency. Id. at 1087.
The district courts standard of review is synthesized as follows:
First, the Court carefully reviews the record of the due process
hearing. Second, appropriate deference is given the Hearing
Officer and his expertise, particularly with regard to factual
determinations. Finally, the Court makes an independent decision
543

whether the hearing officer's determination is supported by a

preponderance of the evidence.
Mr. & Mrs. K., 949 F. Supp. at 938. When questions of law are also presented, the court makes
an independent determination whether the requirements of the IDEA have been met. Farrin, 165
F. Supp. 2d at 43. The party challenging the hearing officer's decision must carry the burden of
proving that the educational agency erred in its substantive judgment. Roland M., 910 F.2d at
995. Here, that burden rests with Lamoine.
III. DISCUSSION
A. Overview of the IDEA
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(a)(1). Such
"appropriate" education must be custom tailored to address the specific child's "unique needs" in
a way "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. of
Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
The primary tool for implementing a "free appropriate public education" under the IDEA
is the students 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. 20
U.S.C. 1401(11), 1414; Lenn, 998 F.2d at 1086. The IEP is developed by a team of persons
most familiar with the students needs including the students teachers and parents.92
Greenbush, 949 F. Supp. at 938. "The ultimate question for a court under the Act is whether a
proposed IEP is adequate and appropriate for a particular child at a given point in time."

92

In Maine, the team that develops the IEP is called the Pupil Evaluation Team ("PET"). Rome Sch. Comm. v. Mrs.
B., No. Civ. 99-CV-20-B, 2000 WL 762027, at *8 (D. Me. Mar. 8, 2000).

544

Burlington v. Dept of Educ., 736 F.2d 773, 788 (1st Cir. 1984)(Burlington I), affd, 471 U.S.
359 (1985)(Burlington II). [A]n IEP is designed as a package. Lenn, 998 F.2d at 1089. It
must target "all of a child's special needs, whether they be academic, physical, emotional, or
social. Id. (citations omitted); see also Roland M., 910 F.2d at 992 (purely academic progress
is not the only indication of educational benefit); Timothy W. v. Rochester, N.H. Sch. Dist., 875
F.2d 954, 970 (1st Cir. 1989), cert. denied, 493 U.S. 983 (1989)("education" under the IDEA is
broadly defined). Parents who disagree with the PET's IEP have a right under the Act to an
administrative hearing to determine if the IEP is appropriate. 20 U.S.C. 1415(f); Lenn, 998
F.2d at 1086. The IDEA provides a right of action to either the parents or the school to challenge
the administrative hearing in either state or federal court. Id. 1415(i)(2).
A federal courts review of a hearing officers decision requires a two-part inquiry:
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 206-07. Here, there
are no alleged procedural violations, and therefore, the first question need not be addressed.
The controversy is whether the Hearing Officer correctly found N.S.s IEPs were not reasonably
calculated to enable him to receive educational benefits. In assessing the I.E.P., this Court is
guided by the principles set forth in the First Circuits Lenn decision:
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.
Lenn, 998 F.2d at 1086.
545

The IDEA also has a preference for mainstreaming disabled students. Id. [T]his
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." Id. (quoting Abrahamson v. Hershman, 701 F.2d 223, 227 (1st
Cir. 1983)). A student's IEP should be targeted to achieve the child's education in the least
restrictive setting. 20 U.S.C. 1412(a)(5); 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 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). Although the default placement for a student under the IDEA is
the local school, an IEP can override this default in situations where the student would not
receive an educational benefit at the local school. Mr. & Mrs. K, 949 F. Supp. at 939. A hearing
officer is guided by these competing concerns when reviewing a child's proposed IEP. Id.
Where a parent is dissatisfied with the IEPs developed by the school district for her child,
the Supreme Court has provided the parent may, at her own financial risk, unilaterally place her
child in a private school. Burlington II, 471 U.S. at 370. If a federal court later determines that:
(1) the student was in need of special education services; (2) that the IEP developed by the
school district was inappropriate; (3) that the unilateral placement by the parent was proper; and
(4) the cost of the private education was reasonable, then the court may order reimbursement for
the parents. 93 See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-16 (1993).
"Reimbursement is a matter of equitable relief, committed to the sound discretion of the district

A.

93

The IDEA provides:

546

court and is usually reserved for parties who prevail at the end of a placement dispute."
Roland M., 910 F.2d at 999 (citations omitted).
While reimbursement is not barred because the private school fails to meet the standards
of the state educational agency, 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." Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26 (1st Cir.
2002)(quoting Carter, 510 U.S. at 13-15). As to the restrictive nature of residential placements,
parents seeking an alternative placement may not be subject to the same mainstreaming
requirements as a school board. See M.S. v. Bd. of Educ. of City Sch. Dist. of Yonkers, 231 F.3d
96, 105 (2d Cir. 2000), cert. denied, 532 U.S. 942 (2001). If placement in a public or private
residential program is necessary to provide special education and related services to a child with
a disability, the program, including non-medical care and room and board, must be at no cost to
the parents of the child. 34 C.F.R. 300.302. States may not escape responsibility for the
costs properly associated with a residential placement simply by stating that the placement
addresses physical, emotional, psychological, or behavioral difficulties rather than or in addition
to educational problems. Vander Malle v. Ambach, 667 F. Supp. 1015, 1039 (S.D.N.Y. 1987).

(ii) Reimbursement for private school placement.

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 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 free appropriate public education
available to the child in a timely manner prior to that enrollment.
20 U.S.C. 1412(a)(10)(C) (ii).

547

As long as the child is properly educable only through a residential placement, when the
medical, social or emotional problems that require hospitalization create or are intertwined with
the educational problem, the states remain responsible for the costs of the residential placement.
Id.; see also McKenzie v. Smith, 771 F.2d 1527, 1534 (D.C. Cir. 1985)(upholding residential
placement for a child who was both seriously emotionally disturbed and learning disabled);
Abrahamson, 701 F.2d at 227 (district court appropriately ordered residential placement to
provide necessary around-the-clock reinforcement); Papacoda v. Connecticut, 528 F. Supp. 68,
72 (D. Conn. 1981)(federal law requires state funding when plaintiff's needs require a residential
placement to integrate educational and therapeutic services); Gladys J. v. Pearland Indep. Sch.
Dist., 520 F. Supp. 869 (S.D. Tex. 1981)(schizophrenic child's social, medical and emotional
difficulties sufficiently intertwined with her educational problems to require residential
placement). Thus, in deciding if a school must fund a residential placement, the court must
determine whether the child requires the residential program to receive educational benefit. See
Rowley, 458 U.S. at 203.
B. Adequacy and Appropriateness of IEPs for the 2002-2003 School Year94
Lamoine asserts the Hearing Officer erred when she concluded Lamoine had failed to
offer appropriate programming during the 2002-2003 school year.
1. September 2002-December 2002
Lamoine contends the Hearing Officer erred in concluding N.S.s IEPs for the fall 2002
were not reasonably calculated to provide N.S. academic benefit, because they failed to address
N.S.s social, emotional, and mental health needs. Lamoine notes the parties agreed to all PET
decisions from September through December 2002. It also points out that N.S. had made
progress during the year 2001-2002, and this progress had continued through the summer. By
94

The educational component of N.S.s IEPs is not being challenged.

548

September 2002, Lamoine says all parties agreed that he should enter MDI High School in a
primarily regular education program, with 25% special education support in his areas of
disabilities. (Pl.s Br. at 13 (Docket #15)). Lamoine further says when N.S. began coming late to
school, the PET ordered counseling with Jeff McCarthy on November 25, 2002. Lamoine
complains the Hearing Officer was unduly influenced by N.S.s precipitous drop in December
2002 and her rejection of Lamoines efforts during this period amounts to the hindsight
decisionmaking that the First Circuit has prohibited. (Pl.s Br. at 14-15).
Two IEPs were developed in 2002: one on September 9, 2002 and the other on November
25, 2002. (R. at 175-78, 139-44). The September 9, 2002 IEP did not provide any counseling
services or other means to address N.S.s emotional, behavioral, and mental health issues. The
September 9, 2002 IEP specifically identifies his attendance as an issue: [Ms. Z.] also shared a
concern with the team that [there] might be a need in the future to have a modified school day for
[N.S.] should difficulties arise with getting [him] to school [within] the traditional hours. (R. at
175). The IEP states: [N.S.] will require close monitoring in terms of attendance
. . . . (R. at 176). The record further establishes N.S. failed to attend class on November 15,
2002, the day he was scheduled to be observed, and his teacher acknowledged N.S. had attended
his class only once or twice the entire semester. (R. at 162-63). Nevertheless, Lamoine failed to
address this issue until November 25, 2002, in an IEP that did not become effective until
December 2, 2002. (R. at 139).
The November 25, 2002 IEP begins with Ms. Z.s expressions of concern about N.S.s
absences from school and her request that work missed due to absences be made up during the
school day. (R. at 139). However, in evaluating his level of performance, the IEP states:
[N.S.] is now attending school on a full time basis and is doing quite well. (R. at 139). Later,
the IEP reiterates the need for close monitoring in terms of attendance. (R. at 140). Lamoines
549

November 25, 2002 response was two-fold: 1) to assign counseling services for one hour per
week with Mr. McCarthy; and, 2) to waive the school atte ndance policy on tardiness. (R. at 141,
144). The November 2002 IEP did not explain the objectives and goals of the counseling or how
counseling would improve N.S.s attendance problems. The Hearing Officer observed that the
waiver of the homeroom tardy policy was certainly a disincentive to regular and prompt
attendance. (R. at 74).
N.S.s array of difficulties, particularly his problems with attendance, had been
extensively documented by the summer of 2002. He had failed to attend school regularly in the
early fall of 2001, before transferring to Lamoine, and had been tutored at home during the rest
of the school year. When the PET met on September 9, 2002, Ms. Z. expressed specific concern
about getting [N.S.] to school. (R. at 175). Moreover, within two weeks of the September 9,
2002 IEP, at the request of Ms. Z., a second PET meeting had been held to address his persistent
tardiness, due to his depression, sleep disorder, and medication.
N.S.s tardiness and attendance failures are clearly not the sole responsibility of
Lamoine. The PET cannot rouse N.S. out of bed or escort him to school on time. But, this Court is
not called upon to decide the fruitless and unanswerable question of fault. In this case, N.S.s
absence was linked to his disability, and it is unarguable if N.S. was not in school, he could not
be said to be receiving a free appropriate public education. Recognizing the inherent
limitations of Lamoine over N.S., the focus of the inquiry is what, if anything, Lamoine did and
what, if anything, should it have done to address his attendance failure. If the record reflected
the more active intervention of Lamoine between September 23, 2002 and November 25, 2002, a
different conclusion might be mandated.
However, apart from assigning counseling services with Mr. McCarthy in October 2002,
there is no evidence of any cohesive attempt to assure N.S.s attendance and improve his
550

tardiness. In her decision, the Hearing Officer comments on the IEPs failure to include any
plan or supports to address these non-attendance issues. (R. at 74). What those plans or
supports could or should have been is beyond the ken of this Court and, in recognition of the
expertise of the administrative agency, Burlington I, 736 F.2d at 792, the Hearing Officer is
entitled to due weight, Rowley, 458 U.S. at 206; Colin K. v. Schmidt, 715 F.2d 1, 5 (1st Cir.
1983).
Lamoine is incorrect, however, in relying on Roland M. and arguing that the Hearing
Officer improperly used hindsight decisionmaking when concluding Lamoine failed to provide
N.S. with an academic benefit during this time. It is certainly true an IEP must take into
account what was, and was not, objectively reasonable when the snapshot was taken, that is, at
the time the IEP was promulgated. Roland M., 910 F.2d at 992. But, here, N.S.s attendance
problems were apparent by early September and persisted throughout the fall. When a student is
enrolled at school, a free appropriate education requires at a minimum that the student be present
and on time. N.S. was not attending class and, when attending, he arrived late. This Court
cannot conclude an IEP, which failed to address in some fashion N.S.s persistent absence and
tardiness, could be adequate and appropriate. Burlington I, 736 F.2d at 788.
2. December 2002 March 31, 2003
a. January 17, 2003 PET Meeting
Lamoine next objects to the Hearing Officers conclusion concerning the PETs actions
from December 2002 to March 31, 2003. The Hearing Officer concluded that even though
Lamoine knew N.S. was not attending school and had various psychiatric diagnoses, all the
PET had done was pass along possible referrals to Ms. Z. (R. at 74). She noted the PET failed to
utilize the psychological and psychiatric reports and available professional expertise to assist the

551

team in developing a plan that might have a chance to work, a plan that incorporated behavioral
and emotional supports, rather than simply academic services. (R. at 74-75).
Lamoine argues its actions are hard to fault. (Pl.s Br. at 17). It points out that N.S.
stopped taking his medications without notice to anyone and that this action led to his precipitous
decline in December. It contends the January 17, 2003 PET meeting was timely, that the PET
offered to investigate residential placements for N.S., but was blocked by Ms. Z., who then
explored them on her own, and that the PET was faced with a fait accompli when Ms. Z.
announced on February 27, 2003 N.S. was going to attend SUWS. (Pl.s Br. at 17).
Lamoine cites M.C. ex rel. JC v. Central Regional School District, 81 F.3d 389, 396-97
(3d Cir.), cert. denied, 519 U.S. 866 (1996), for the proposition that a school district should have
a reasonable period of time to review and develop a programming alternative once it becomes
clear the students IEP is not working. Specifically, in addressing the students right to
compensatory education, the Third Circuit in MC stated this right should accrue from the point
that the that the school district knows or should know of the IEPs failure and a school district
may not be able to act immediately to correct an inappropriate IEP; it may require some time to
respond to a complex problem. Id.
Here, Lamoine knew or should have known N.S. was having attendance and tardiness
problems from at least early September 2002; by December 2002, N.S. had effectively stopped
attending school. Nevertheless, on January 17, 2003, when the issue came up, Lamoine could
not even quantify the amount of time N.S. had missed from school: There are no clear
indications of how many days [N.S.] has missed, but he pretty much hasnt been in school since
before the Christmas Vacation. (R. at 131).
The January PET minutes confirm that the PET discussed the following alternatives: 1)
hospitalization; 2) a new medication regime; 3) WINGS; and, 4) residential treatment. The PET
552

talked at length about any viable alternatives or possible programs that might help with ensuring
a free appropriate public education. (R. at 131). Regarding hospitalization, the minutes reflect
Mr. White gave a negative report on one of the state hospitals, but didnt know the other. (R.
at 131). Regarding medications, absent information from Dr. Hawkins, no conclusions could be
reached. (R. at 131). Regarding WINGS, Mr. White offered to contact WINGS, but this was in
the face of Ms. Z.s prior unproductive experience with WINGS. (R. at 131). The upshot was
the PET decided to have a conference call among Dr. Hawkins, Mr. McCarthy, Ms. Z., and Mr.
White to see if there might be an agreeable game plan. (R. at 131). Regarding residential
alternatives, Ms. Z. recalled the PET gave her the names of two Maine facilities, Sweetser and
Spurwink, but when she contacted them and others, they informed her N.S. did not meet their
criteria. (R. at 122, 435-36). There is no indication in the January 2003 minutes that the PET
referred Ms. Z. to KidsPeace, to any other day treatment program, or offered to assist her with
the investigation of residential treatment alternatives.
Ms. Z. later summarized what the minutes themselves reflect: At the PET I did discuss
my feelings of I needed help. I needed help trying to find the right help for my kid. He was not
accepting traditional therapy. And I think the school honestly didnt they really didnt know
what to do. (R. at 435). In M.C., the Third Circuit made the following statement:
[A] childs entitlement to special education should not depend upon
the vigilance of the parents (who may not be sufficiently
sophisticated to comprehend the problem) nor be abridged because
the districts behavior did not rise to the level of slothfulness or
bad faith. Rather, it is the responsibility of the childs teachers,
therapists, and administrators -- and of the multi-disciplinary team
that annually evaluates the students progress - - to ascertain the
childs educational needs, respond to deficiencies, and place him or
her accordingly.
M.C., 81 F.3d at 397.

553

The PET minutes confirm this multi-disciplinary group of professionals was

understandably flummoxed. They faced a young man who was not attending school, who had
proven refractory to counseling, and who was at risk of failure. Instead of galvanizing the PET,
the minutes confirm the PET, in a manner inconsistent with M.C., turned N.S. over to Ms. Z.,
charging her with the sole obligation to act for her son.
b. February 27, 2003 PET Meeting
Between the January 17, 2003 and February 27, 2003 PET meetings, Ms. Z. engaged Ms.
Goldberg, who investigated alternative placements; and N.S. applied for and was accepted to
SUWS. Although the PET had proposed a conference among Dr. Hawkins, Mr. McCarthy, Ms.
Z., and Mr. White, the February 2003 minutes fail to confirm any such conference took place. 95
Instead, the February 2003 minutes focus on what Ms. Z. had accomplished over the last five
weeks and her decision to send N.S. to SUWS.
Responsibility for N.S. having devolved from the PET to Ms. Z., the PET criticized her
solutions. It raised numerous issues, ranging from state approval to mental health treatment, and
ended by refusing to approve the SUWS program. Although the minutes reflect the PETs
criticism of Ms. Z.s actions, there is little, if any, reference to the PETs constructive
alternatives. There is no mention of day treatment programs , including KidsPeace. There is no
mention of other residential treatment alternatives. Instead, the PET criticized Ms. Z.; they
questioned why she had not completed the WINGS information, ignoring her earlier statements
that WINGS was insisting she apply for Medicaid, when she had other resources. (R. at 127).
They also criticized N.S., stating.: [N.S.] needs to follow the advice / recommendations of the
program; he was in total denial of any difficulties he may have; and the alternative high

95

If it did, there is no reference to any recommendations that flowed from the conference.

554

school was not available until N.S. starts acknowledging his issues. (R. at 126). The PET
emphasized N.S.s placement must be an approved educational placement and noted the need
for more information about SUWS, including its education program. (R. at 127). Contrary to
M.C., instead of acting as a cohesive multi-disciplinary group of professionals, the PET
assumed a passive, negative, and restrictive role, rejecting Ms. Z.s solutions, but failing to
present its own.
c. March 31, 2003 PET Meeting and the KidsPeace Offer
The next PET meeting took place on March 31, 2003. By this time, having started
SUWS on March 7, 2003, N.S. was nearly halfway through the program. Lamoine characterizes
this PET meeting as follows: [T]he Team reconvened on March 31, and Lamoine rejected
SUWS because it was not an educational placement and was not approved by the Maine DOE.
Lamoine then offered the family a placement at the Kids Peace day treatment program, which
Ms. Z. rejected. (Pl.s Br. at 16-17).
Lamoines current characterization of the meeting is difficult to credit. The minutes tell a
different story. The meeting begins with Mr. White giving Ms. Z. the Parent of the Year
Award for placing N.S. in the SUWS program. (R. at 116). Contrary to Lamoines current
position, the minutes state:
L. Sereyko discussed her conversation with the program; they
explained the program was not an approved school and at the end of
the program they will present a list of activities / classes to the
parent who then usually presents it to the school to determine what
courses / credits can be obtained. M. Gertler [a school guidance
officer] agreed to review the list of classes / activities from the
SUWS program.
(R. at 116). The minutes end: Michelle Gertler will review the information from the SUWS to
determine possible credits earned. (R. at 118). The March 31, 2003, minutes demonstrate that,
although Lamoine had confirmed SUWS was not an approved school, it also agreed to review
555

SUWS course content and determine what, if any, credits it could allow. The PETs rejection
was modified by its willingness to review the SUWS curriculum and decide later on credit
issues.
Moreover, to say the March 31, 2003 discussion about KidsPeace was an offer to place
N.S. in the KidsPeace day treatment program is an exaggeration. The March 31, 2003 PET
meeting focused on what N.S. was going to do upon completion of the SUWS program in late
April 2003. The minutes reflect that Ms. Sereyko explained she had researched a possible day
treatment program at KidsPeace and that she had spoken to the [KidsPeace] Program. (R. at
117). Again, contrary to Lamoines Brief, the minutes do not confirm an offer to place N.S. at
KidsPeace. The KidsPeace day treatment program was not even operational in late April 2003
and was not licensed until September 4, 2003. At most, Ms. Sereyko suggested the KidsPeace
day treatment program should be explored as a possible placement sometime in the future, a
suggestion Ms. Z. rejected.
What the March 31, 2003 minutes reflect is the inevitable result of the PETs earlier
transfer of responsibility to the parent. Ms. Z., having assumed by default the obligation to place
her son at SUWS, was taking the next step and seeking further placement. During the meeting,
Mr. White acknowledged what is apparent: [H]e does not believe a PET decision can be made
at this time until the next step from [Ms. Z.] is presented to us. (R. at 117). The PET
concluded by agreeing to reconvene when Ms. Z. receives information [from] the SUWS
program. (R. at 118).
3. Conclusion: IEPs 2002-2003
This Court concurs with the Hearing Officers determination that Lamoine failed to
provide IEPs reasonably calculated to provide academic benefit for the 2002-2003 school year,
because the IEPs failed to address all areas of N.S.s need. Lamoine failed to anticipate
556

attendance and lateness problems, failed to account for his presence or absence from school and
class, failed to act decisively when faced with his decompensation in December, abnegated its
legal and professional responsibility, and when his mother filled the void, criticized her
solutions.
This Court takes Lamoines point about the SUWS program being presented as a fail
accompli. Even if the PET intentionally or inadvertently charged Ms. Z. on February 27, 2003
with the obligation to seek out residential treatment alternatives, it did not authorize her to act for
Lamoine to select and agree to pay for whatever residential placement she deemed appropriate,
regardless of the IDEAs constraints. It is troubling there is no evidence Ms. Z. or (with her
authorization) Ms. Goldberg informed Lamoine of Ms. Z.s plans to send N.S. to an expensive,
out-of-state program, until N.S. had been accepted and was on the verge of traveling to North
Carolina. Ms. Z. had a right to insist Lamoine comply with its obligations under the law, but
Lamoine also had a right to expect her cooperation in doing so.
But, the overriding right here is N.S.s right to a free public education, a right that
continued during the winter and spring of 2003. As will be discussed, Lamoines suggestion of
the KidsPeace day treatment program was not available to N.S. until September 4, 2003. There
is no hint from Lamoine of a reasonable alternative to SUWS, and the only evidence in this
record of an alternative that accorded N.S. his legal rights is the SUWS program. If the
evidence in this case permitted the conclusion Lamoine had in fact proposed a reasonable
alternative to SUWS, this Court would be confronted with a different decision. 96

96

Would a reinstitution of a period of home -based tutoring combined with an intensive period of psychiatric and
psychological intervention have been a reasonable alternative? Would Sweetser, Spurwink or another Maine-based
residential treatment program have accepted N.S. if Lamoine had intervened to assist Ms. Z.? What are the
alternatives when the parent and teenager persistently fail in the notoriously difficult chore of getting the adolescent
out of bed, dressed, and out of the house in the morning? Would a revised and more structured program at MDI
have worked? There is no evidence in the record any of these alternatives were being pursued, leaving the sole
viable option in the winter of 2003, the one Ms. Goldberg and Ms. Z. proposed.

557

C. KidsPeace Offer and Order

Lamoine states that the central issue in this case has always been Lamoines offer of the
[KidsPeace] day treatment program. (Pl.s Br. at 17). Lamoine asserts the Hearing Officer did
not even mention this program offer, let alone review it, in terms of the March 2003 PET
proposal. (Pl.s Br. at 17). As just noted, however, it is erroneous to assert Lamoine made an
offer for the KidsPeace day treatment program to Ms. Z. on March 31, 2003. Lamoines next
argument, however, is that the Hearing Officer should not have rejected the PETs June 13, 2003
order placing N.S. in the KidsPeace day treatment program. This Court disagrees.
1. A Picture of N.S.
From the evidence in this case, a picture of N.S. emerges. In 2003, N.S. appears to be a
creative, shy, gentle young man. Ms. Madamba described him in March 2003: When he first
came in, he was very quiet and shy and reserved, appeared very childlike, kind of solemn at the
same time . . . . (R. at 577). Leslie Goldberg had similar impressions: [N.S.] was, as
described, a very soft spoken, almost feminine, not a rough and tough, heavy testosterone kind of a
boy; young and mature, sweet, and yet, he was - - he seemed to be wanti ng . . . . (R. at 51920). He was very, very sensitive about peers and was concerned he would be ostracized,
ridiculed, and not accepted. (R. at 705). His greatest academic success has come from his
artistic ability; the PET described N.S. as very artistically creative and enjoys working with
stained glass. (R. at 176).
Against this profile, there is another side of N.S. He can be irritable, defiant, vulgar,
hostile, and generally difficult, particularly toward his mother. (R. at 694). He was diagnosed
with a Major Depressive Disorder. (R. at 132). He had difficulty with the most basic daily

558

activities of living, such as, hygiene, sleep, meals, all of that. (R. at 696). His mother reported a
persistent problem with bedwetting. (R. at 411-22). He could sleep as much as fifteen hours a
day. (R. at 422). Although he has average to above average ability, he had a long history of
academic difficulty in school. (R. at 314, 694). As early as fifth grade, he received special
education services and began to experience problems with self-esteem and confidence. (R. at
409). He continued to approach tasks with a great deal of self doubt and a lack of confidence.
(R. at 702).
2. N.S. and Ms. Z.
N.S. has had a difficult relationship with his mother. Ms. Z. is a single mother and has
been the only one person with him 24 hours a day. (R. at 714). Dr. Hawkins explained that
its quite typical for young adolescents to direct all their bitterness and disappointment at their
parents because theyre safe - - its a safe object for that bitterness and because they dont really
subjectively perceive the problem as lodged in their own life. (R. at 695). N.S. certainly fit that
pattern. His mother admitted that during their joint sessions with Dr. Hawkins, N.S. spent much
of the time verbally abusing me. (R. at 414). There was concern that, despite her best efforts,
Ms. Z. was unable to deal with N.S. in a productive and reinforcing manner. (R. at 559-60). Dr.
Hawkins testified it had become quite clear to him that N.S.s antagonism towards his mother
undermined - - completely undermined her ability to help him and to be able to provide safe and
[e]ffective care for him. (R. at 713).
3. The KidsPeace Day Treatment Program and N.S.
The KidsPeace day treatment program posed a number of problems. First, Dr. Hawkins
thought N.S. would have difficulty even getting to the KidsPeace program on a daily basis. (R. at
713). Second, he expressed the view that Ms. Z.s ability to deal with N.S. was compromised and
agreed a period of separation would be preferable. (R. at 714-15). Third, Dr. Hawkins
559

thought the residential treatment program should last a substantial period of time, as long as one
year. (R. at 721).
Dr. Hawkins was not alone. Mr. McCarthy also testified that N.S. was not having
success at that time in a community-based situation, and I felt something more restrictive would
be appropriate. (R. at 459). Mr. McCarthy noted N.S. had not been successful, effectively not
engaging in any supports that had been provided for at least a couple of years. (R. at 459). He
was concerned about whether N.S. would even be capable or willing to get out of bed in the
morning and get to KidsPeace. (R. at 464). He thought a residential program would be better for
him. (R. at 464).
4. The KidsPeace Environment and N.S.
Mr. McCarthy was also concerned N.S. would perceive the KidsPeace environment as
negative and return to a state of social isolation and depression. He testified the KidsPeace
population had a mix of pretty significant clinical disorders, and the potential of [N.S.] not
having his needs met. I would be concerned about that given the level of need that some of these
disorders present as well as some of the presenting problems thats listed [in the KidsPeace
materials]. (R. at 466). KidsPeace literature described typical presenting problems for its day
program clients: trauma originating with physical/sexual abuse/ PTSD; sexual perpetrator;
aggressive acting out behavior; fire-setting; depression, and delinquency; whereas the residential
clients have a variety of diagnoses, including Pervasive Development Disorder (PPD), Obsessive
Compulsive Disorder (OCD), oppositional defiant, conduct disorder, Aspergers, and depression.
(R. at 323, 775). Further, the day program clients would be educated with the residential clients
and N.S. would be subject to the students pecking order. (R. at 761-62, 779).

560

5. N.S.s Need for a Residential Program

33
Mr. McCarthy stressed that the residential part of the program was a critical element of
any placement:
[T]he main factor would be given that a residential program
provides the 24 hour supports, and that what I understand up to this
point from reports that have been involved with [N.S.] is that he is
successful, has been successful with a residential program. Theres
no parts of the day that are left for him to really be on his own, per
se, and each part of the day something is going on in terms of the
structure and consistency, and he has available people to either
engage with or to have them engage him if theres a problem.
(R. at 471).
6. Conclusio
n
This Court concludes Lamoines attempt to place N.S. at the KidsPeace day treatment
program was inappropriate. This is not to say that the KidsPeace day treatment program will
continue to be inappropriate for N.S. in the future, only that in June 2003, Lamo ines order was
inappropriate. It failed to address N.S.s underlying sensitive personality, his difficult
relationship with his mother, his need for a period of separation from his mother, and the
potentially adverse conseque nces of placing N.S. within KidsPeaces client mix.
D. Appropriateness of SUWS Placement
Having concluded the KidsPeace day treatment program was inappropriate, this Court
must next determine whether N.S.s placement at SUWS was appropriate. Lamoine contends
N.S.s placement at SUWS was improper under the IDEA for the following reasons: (1) SUWS
was not the least restrictive placement, because N.S. was 2,000 miles away from home; (2)
SUWS is not certified as a special education program nor are there any certified special

561

education teachers at SUWS; (3) the SUWS program offers no academic services; and, (4)
KidsPeace was an appropriate placement.
SUWS is designed to be a powerful intervention for students that need structure,
supportive counseling, motivational improvement, and the development of self-esteem, selfreliance, and self-respect. (R. at 69, 352). All students are expected to complete a rigorous
course of experiential instruction that addresses Creative Writing, Healthy Living, Psychology, 97
Physical Education, Social Studies, Outdoor Leadership, English, Environmental Studies, First
Aid, Personal Development, and Home Economics. (R. at 69, 352). Students are under twentyfour-hour supervision. (R. at 352). The program involved being with a group of six or seven
students in the wilderness. (R. at 718). By the end of the program, N.S. was assuming a
leadership role. (R. at 718).
The Hearing Officer found that SUWS was an appropriate alternative placement for N.S.:
SUWS clearly provided the structure and incentives to successfully
address the major impediment that was preventing [N.S.] from making
academic progress -- his school non- attendance. There was some
suggestion by the Department that [N.S.s] school attendance issues,
and his other emotional issues as well, were home based and were
not issues that were within the schools sphere of responsibility.
However, [N.S.s] poor attendance record appears to have a clear
connection to his emotional disability and combined with
ineffective programming
. . . cannot be separated from [that handicapping condition]. . . . .
The Department further argues that the SUWS program is not the
LRE for [N.S.]. However, while the restrictiveness of a placement
may be considered when determining whether to award
97

In the Psychology course,

Students learn fundamental principles of psychology by experiencing real-life situations that

demand integrity, honesty, and responsibility. Students learn how their behaviors affect others,
honest communication with friends and authority figures, and healthier functioning within their
own families. Confronting their own beliefs and feelings, they can evaluate the effectiveness of
patterns and choose more effective strategies.
(R. at 353).

562

reimbursement, parents are not held as strictly to the standard of

LRE as are school districts. . . . . Placement at the SUWS of the
Carolinas program did not violate the LRE requirement since, at

the time of placement, the Lamoine School Department was unable to

locate a placement either less restrictive and/or closer to home.
(R. at 75).
Further, the SUWS program was uniquely suitable for N.S. It removed him from his
mothers oversight and placed him with other adolescents with similar concerns. It focused on
emotional growth, physical activity, and encouraged his artistic and creative impulses. It was
designed to instill confidence and responsibility.
The record is replete with evidence that the services provided by Lamoine were not
successful. N.S.s educational and non-educational problems were so intertwined they could not
be separated. N.S.s history in the public school system before his placement at SUWS was
marked by massive difficulty with school attendance, which affected his academi c progress. In
the face of N.S.s decline, Lamoine offered no plan to deal with his worsening condition, in spite
of clinical recommendations that N.S. be placed in a residential setting. Although SUWS was
not certified as a special education program and did not have certified special education teachers,
reimbursement is not barred because a private school is not readily identifiable as a special
education placement and fails to meet the standards of the state educational agency. See Carter,
510 U.S. at 13-14; Rafferty, 315 F.3d at 26. Here, there is record support that SUWS, at a
minimum, provided some element of services in which the public school placement was
deficient. Cf. Berger v. Medina City Sch. Dist., 348 F.3d 513, 523 (6th Cir. 2003).
The cost of the SUWS program gives this Court considerable pause. There are
presumably countless specialized (and expensive) programs scattered throughout this country
that could benefit students like N.S. As Lamoine points out, the First Circuit has reminded us
563

that [a]ppropriateness and adequacy are terms of moderation, and the IDEA does not promise
perfect solutions. Lenn, 998 F.2d at 1086. This Court views the Hearing Officers decision to
order reimbursement of the considerable expense of the SUWS program in light of the absence
of any proposed alternative by Lamoine during the period of N.S.s attendance at SUWS.
Based on N.S.s non-attendance, Lamoines failure to respond, and N.S.s mental health
providers recommendations, the Hearing Officer properly found that placement at SUWS was
necessary for N.S.s academic progress. Because tuition reimbursement is available only for an
appropriate private school placement, and the Hearing Officer made the supportable finding that
SUWS was appropriate, this Court affirms the Hearing Officers decision ordering Lamoine to
reimburse Ms. Z. for the cost of N.S.'s tuition at SUWS.
E. Adequacy and Appropriateness of IEP for the 2003-2004 School Year
Lamoine also asserts the Hearing Officer erred in concluding the 2003-2004 IEP, which
identified the KidsPeace day treatment program as a placement, was not reasonably calculated to
provide N.S. educational benefit. Lamoine proffers that the KidsPeace day treatment program
was an appropriate placement because it would have provided N.S. with an extremely well
structured, therapeutic placement, which in virtually all regards met the very same standards that
the hearing officer had articulated for a beneficial program. (Pl.s Br. at 26-27).
The June 12, 2003 IEP proposed full-time placement at the KidsPeace day treatment
program and included academic and emotional goals. At this time, however, N.S. was attending
Cedar Mountain, the KidsPeace day treatment program was not yet licensed, and no students
were enrolled there. The

Hearing

Officer

determined

the KidsPeace placement was

inappropriate, noting, It is not difficult to understand a parents hesitation to place a Student in a

program that did not yet exist. (R. at 76).

564

The evidence supports the Hearing Officers conclusion that the KidsPeace day treatment
program was not an appropriate placement for N.S. in June September 2003. The program was
not yet in existence, and N.S.s mental health providers agreed it would not be an appropriate
placement for him. Dr. Hawkins and Mr. McCarthy were particularly concerned that removing
N.S. from Cedar Mountain too early would trigger a relapse. Mr. McCarthy noted N.S. was
beginning to take a leadership role at Cedar Mountain, was engaging socially, and taking
responsibility for parts of his program and his daily life. He clearly did not recommend returning
N.S. to his community and a community-based program at this time.
The evidence supports the Hearing Officers determination that, because Lamoine failed
to identify an appropriate and available placement for N.S., the 2003-2004 IEP was not
reasonably calculated to provide N.S. educational benefit in the least restrictive setting.
F. Appropriateness of Cedar Mountain Placement
The Hearing Officer concluded Cedar Mountain was an appropriate placement only until
Lamoine identifies and offers an appropriate and less restrictive non-residential program closer
to N.S.s home:
[N.S.] is not cured. He still needs what Cedar Mountain seems to
be offering hima highly individualized program, significant
structure, a small setting, small class sizes and the ability to work in
his area of great love, visual arts. Those needs do not suggest that
[N.S.] needs a therapeutic day treatment program, and I am not
persuaded that he either needed such a program last March, or that
he needs such a program today.
However, I am also not persuaded that [N.S.] needs to attend a
boarding school 2000 miles away in order to make educational
progress. As noted above, what he needs is a highly individualized,
small, supportive, structured setting that will demand school attendance
while providing the supports [N.S.] will need to work through his
emotional issues and alleviate his previous school avoidance.
The Lamoine School Department has failed to identify such a setting.
In the absence of such a proposed placement, [Ms. Z.s] unilateral
placement at Cedar Mountain is appropriate until such time that the
565

Department identifies and offers an appropriate, less restrictive, day

program in or around Hancock County.
(R. at 76-77).
With regard to reimbursement for Cedar Mountain, the Hearing Officer stated:
The second part of this issue concerns parental reimbursement for the
cost of the Academy at Cedar Mountain. To answer this we must look
towards the equities that are at work in the situation. The School
Department failed to identify an appropriate, and available,
placement for student upon his completion of the SUWS program.
However, neither Students mother, nor her consultant, Ms.
Goldberg, looked into any less restrictive, and more local,
educational placements. Ms. Goldberg indicated that the King
George School in Vermont was on her short list of possible
placements, but that Student chose the Academy at Cedar Mountain.
While it is advisable to include Student in the decision making
process, it appears that he was given complete authority to choose
any one of the schools on this list, with no consideration given to
distance and cost. While the tuition and room and board at the Ki ng
George School might be similar to that at Cedar Mountain, it is
certainly closer to Students home and would reduce the time and cost
of travel, while enabling Students mother to have more involvement
with the Student and his school. It is also the case that Student is not
receiving any sort of therapeutic intervention at Cedar Mountain.
(R. at 77).
The Hearing Officer noted that in a legal sense Cedar Mountain is an appropriate
placement because N.S. has made, and will probably continue to make, educational progress.
However, she was not persuaded in an equitable sense that
[N.S.] requires a residential setting in order to make educational
progress. . . . [N]o consideration was given to possible non- residential
settings, or to residential settings closer to home. Lastly, it is unlikely
that [N.S.] no longer needs any sort of therapeutic intervention, yet he
is receiving none at Cedar Mountain. Nor is [N.S.s] mother receiving
any family therapeutic intervention.
(R. at 77-78).
The Hearing Officer determined Ms. Z. was entitled to some level of reimbursement for
the costs related to [N.S.s] attendance at the Academy at Cedar Mountain from April 23, 2003
566

up to such time as the Department offers an appropriate placement that is less restrictive than
Cedar Mountain. (R. at 78). However, she noted tuition reimbursement is an equitable remedy,
and awarded reimbursement to Ms. Z. in an amount equivalent to the amount Lamoine would
have spent for N.S.s placement and services if he had attended the KidsPeace day treatment
program from April 23, 2003, until the PET identifies and offers a less restrictive, appropriate
educational setting. She also noted that, if Lamoine identifies and offers an appropriate day
program in the area, and Ms. Z. chooses to keep N.S. at Cedar Mountain, Lamoine is no longer
responsible for paying Cedar Mountain tuition.
This Court finds that a preponderance of the evidence shows Cedar Mountain was an
appropriate placement for N.S. after completion of the SUWS program. Lamoine failed to
identify and offer an appropriate placement for N.S. after this completion at SUWS.
Academically and emotionally, N.S. is receiving an educational benefit from Cedar Mountain;
N.S.s performance at Cedar Mountain has proven the experts predictions essentially correct.
This Court accepts the Hearing Officers finding that Cedar Mountain is an appropriate
placement for N.S. until Lamoine identifies an appropriate and less restrictive day program
closer to N.S.s home.
G. Ms. Goldbergs Services
Lamoine asserts the Hearing Officer erred in ordering it to reimburse Ms. Z. for the costs
associated with hiring Ms. Goldberg. Although both parties cite 34 C.F.R. 300.403(c), which
authorizes reimbursement for the cost of enrollment in a private school, neither party cites any
case law directly on point, and this Court could find none. In Connors v. Mills, 34 F. Supp. 2d
795 (N.D.N.Y. 1998), the district court denied a parents request for reimbursement of an
educational consultants fees pursuant to the IDEAs attorney fee provision, but suggested the

567

educational consultant could collect her fees for evaluating and advising the parent about
educational problems and the proper educational placement for the student. Connors, 34 F.
Supp. 2d at 808. Here, unlike Connors, the educational consultant did not attempt to collect her
fees; rather Ms. Z. sought reimbursement for the fees paid to Ms. Goldberg. Under the Connors
rationale, however, this Court concludes Ms. Goldbergs fees are reimbursable under 34 C.F.R.
300.403(c) as a cost of enrollment, particularly in view of this Courts conclusion that the PET
had effectively assigned this responsibility to Ms. Z.
H. Notice Requirement
Lamoine finally contends Ms. Z. failed to comply with the specific notice requirements
set forth in the IDEA, and therefore, reimbursement should be denied.
Reimbursement may be denied or reduced if parents do not give the district notice of
their intent to remove their child from public school before they do so. 20 U.S.C.
1412(a)(10)(C)(iii)(I); see Rafferty, 315 F.3d at 27. That notice can be provided either "at the
most recent IEP meeting that the parents attended prior to removal of the child from the public
school" or by written notice ten business days prior to such removal. 20 U.S.C.
1412(a)(10)(C)(iii)(I); Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004).
These statutory provisions make clear Congress's intent that before parents place their
child in private school, they must at least give notice to the school that special education is at
issue. Amy N., 358 F.3d at 160. This serves the important purpose of giving the school system
an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an
appropriate plan, and determine whether a free appropriate public education can be provided in
the public schools. Id.

568

This Court cannot accept Lamoines argument that Ms. Z. violated the notice provision of
the IDEA when placing N.S. at SUWS. 98 The January 17, 2003, PET minutes confirm there was a
discussion about possible residential situations. (R. at 131). In fact, Ms. Z. testified it was the
PET itself that gave the names of residential treatment facilities to investigate. (R. at 435- 36).
Further, there is no indication in the PET minutes of February 27, 2003, that the PET was
unaware Ms. Z. had been exploring alternative placements; to the contrary, the meeting had been
scheduled in part to discuss the results of Ms. Z.s investigation. (R. at 125-28). It may be true
the PET was unaware of the specific placement at SUWS; however, once the PET had turned the
process over to Ms. Z., it was on notice she would act. In fact, the very next meeting, Mr. White
gave Ms. Z. his personal Parent of the Year Award for doing so. (R. at 116).
As to the placement at Cedar Mountain, this Court also concludes the notice provisions were
not violated. At the March 31, 2003, PET meeting, Ms. Z. refused to consider the KidsPeace day
treatment program and stated that SUWS would make a recommendation for a therapeutic
boarding school for N.S. At that time, she informed the PET that N.S. would likely not be
returning to Lamoine after completion of the SUWS program and that he was in an
assessment program to help find the school. The placement at Cedar Mountain occurred on
April 23, 2003. Lamoine clearly had notice of Ms. Z.s intent to place N.S. at an out-of-state
boarding school.
I. Attorney Fees
In her cross-appeal, Ms. Z. requests attorney fees incurred by the Due Process Hearing
and the defense of the lawsuit in this Court. The IDEA vests a court with discretion to grant
reasonable attorney fees to the parents of a child with a disability if they may properly be
98

This Court has already expressed its discomfort with Ms. Z.s failure to keep Lamoine apprised of her
independent efforts to locate an appropriate residential treatment alternative. The question is whether in doing so
she violated the notice requirements of 20 U.S.C. 1412(a)(10)(C)(iii)(I) and 34 C.F.R. 300.403(d).

569

characterized as "the prevailing party." 20 U.S.C. 1415(i)(3)(B). Given that Ms. Z. has
prevailed on her IDEA claim regarding N.S.s placement, this Court grants Ms. Z. reasonable
attorney fees.
IV. CONCLUSION
The Plaintiffs appeal is hereby DENIED, and judgment is hereby entered in favor of the
Defendant. The Defendants request for attorney fees as the prevailing party is GRANTED. The
Defendant has fourteen (14) days from the entry of this Order in which to submit an affidavit
detailing reasonable attorney fees and costs, and the Plaintiff has fourteen (14) days in which to
object to the Defendants submission.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 4th day of January, 2005.
Plaintiff
LAMOINE SCHOOL COMMITTEE
represented by
ERIC R. HERLAN
DRUMMOND, WOODSUM & MACMAHON
245 COMMERCIAL ST.
P.O. BOX 9781
PORTLAND, ME 04104
207-772-1941
Email: erherlan@dwmlaw.com
LEAD ATTORNEY ATTORNEY TO BE NOTICED
V.
Defendant
MS Z
on her own behalf and on behalf of her minor son, NS
570

represented by JAMES C. MUNCH, III

VAFIADES, BROUNTAS & KOMINSKY
23 WATER STREET
P. O. BOX 919 BANGOR, ME 04401
(207) 947-6915
Email: jcm@vbk.com
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Counter Claimant
MS Z
on her own behalf and on behalf of her minor son, NS
represented by JAMES C. MUNCH, III
(See above for address)
ATTORNEY TO BE NOTICED
V.
Counter Defendant
LAMOINE SCHOOL
COMMITTEE
represented by ERIC R. HERLAN
(See above for address)
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Counter Claimant
MS Z
on her own behalf and on behalf of her minor son, NS
represented by JAMES C. MUNCH, III
(See above for address)
ATTORNEY TO BE NOTICED
V.
Counter Defendant
LAMOINE SCHOOL
COMMITTEE
represented by ERIC R. HERLAN
(See above for address)
LEAD ATTORNEY ATTORNEY TO BE NOTICED
571

STATE OF MAINE
SPECIAL EDUCATION DUE PROCESS HEARING
February 15, 2013
13.015H

Parents v. Yarmouth School Department

REPRESENTING THE SCHOOL: Eric Herlan, Esq.

REPRESENTING THE FAMILY:

Richard OMeara, Esq.

HEARING OFFICER:

Rebekah J. Smith, Esq.

_______________________________________________________________________
This hearing was held and this decision issued pursuant to Title 20-A M.R.S.A. 7202 et
seq., Title 20 U.S 1415 et seq., and accompanying regulations. The hearing was held on
November 26, November 29, December 7, and December 18, 2012, and January 3 and January
13, 2013, at the offices of Drummond Woodsum in Portland. Present for the entire proceeding
were parents of the student; Richard OMeara, Esq., counsel for the family; Jodi McGuire,
Director of Instructional Support for the school department; and Eric Herlan, Esq., counsel for
the school department.
..
I. PROCEDURAL BACKGROUND
The parents filed a request for a hearing on September 6, 2012. A prehearing conference
was held on October 15, 2012.
.
II. ISSUES
The issues for hearing are:
1. Whether the school district failed to provide the student a free appropriate public
education during the 2010-2011 school year by failing to refer her for special
education prior to December 2010 or failing to find her eligible until September 2011.
572

2. Whether the school district failed to provide the student with a free appropriate public
education from September 2011 to August 2012.
3. Whether the IEP offered to the student for the 2012-2013 school year was reasonably
calculated to provide her with a free appropriate public education.
.
4. If the family is entitled to a remedy, what remedy is appropriate?
III. FINDINGS OF FACT
1. The student is xx years old. (S. 3.) She is in the xx grade at xx Middle School (S. 34.)
2. The student has attended schools within the Yarmouth School Department since xx.
(Testimony of students mother.)
xx (2007-2008)
3. Prior to the student beginning xx, the students mother expressed concern to school
screening staff that the student did not understand the difference between letters and
numbers. (Testimony of students mother.) In xx the student was identified as having
difficulty with numbers and letters and a Personalized Learning Plan (PLP) was
devised for her in March 2008, although the family was not informed that the student had
a PLP until early in her xx grade year. (S. 415-419; Testimony of students mother.)
4. The school department uses a philosophy of blurring the boundaries of instructional
supports so that special education is not the first line of services that a student may
receive. (Testimony of McGuire.) The school department tries to meet each students
needs with the resources available, regardless of whether or not the student is identified
as eligible for special education services. (Testimony of Ms. McGuire.) The PLP is
utilized as an internal document to identify the services and time frames of such services
provided to students. (Testimony of McGuire.)
5. The students mother, who was then the schools volunteer coordinator, had a meeting
with the school department superintendent in May 2008, in which she felt he raised his
voice and yelled at her when she raised concerns about teacher absences. (Testimony of
students mother.) The students mother wrote to the superintendent in August 2008
regarding the same concerns. (P. 6.) This led to a response from the superintendent
which was copied to the school board, in which the students parents felt that the
superintendent violated the students confidentiality by referencing the students
particular needs, encouraging the parents to maintain contact with the school counselor
and the students teacher to monitor the students progress. (P. 34.)
XX grade (2008-2009)
6. Shortly after the student entered xx grade, her parents received a request from her regular
education teacher for a parent-teacher conference to discuss the teachers concerns that
the student did not have the foundational skills to succeed in xx grade, specifically that
573

she did not know her letters and her numbers. (Testimony of students mother.) For
most of xx grade, under the auspices of a PLP, the student received four hours per week
of literacy and math instruction in the Learning Center, the schools classroom for the
delivery of special education services. (S. 418.)
7. In January 2009, a referral to an IEP Team was made by the students parents, her regular
education teacher, and the schools instructional strategist. (S. 384-386.) In March 2009,
during the spring of the students xx grade year, the PLP services increased to four hours
per week of literacy. (S. 418.)
8. In March 2009, an IEP Team meeting was held to review a series of evaluations that had
been conducted. (S. 354.) The Team reviewed a psychoeducational evaluation
conducted by Lisa Millwood, M.Ed., NCSP, who was the schools psychologist at the
time. (S. 363-368.) .. Ms. Millwood found that the students IQ fell within the high
average range and there was no significant difference between the students general
ability to process language, which fell within the high average range, and her general
ability to process visual information, which fell within the middle average range. (S.
368.) Ms. Millwood concluded that the students working memory and visual processing
speed were estimated to be within the average range, probably slightly higher. (S. 368.)
Finally, Ms. Millwood found that the students phonological processing, strongly linked
to reading, writing, and oral language, was solidly within the average range as was her
performance on the memory and learning tasks that assess short-term visual and auditory
memory. (S. 368.) Ms. Millwood observed that the student exhibited distractibility and
impulsivity that might have interfered with some of the subtests; Ms. Millwood opined
that her distractibility could have been negatively impacting her learning. (S. 368.)
9. The Team also reviewed an academic evaluation, conducted by Valle Gooch, MS, the
schools instructional strategist, in February 2009. (S. 377-383.) .. She reported that
testing results, however, indicated that when the student was required to put various skills
together to read and spell words, complete math calculations, or conduct any task
requiring pencil and paper as well as sequencing information, the student was not
consistently successful. (S. 381.) Ms. Gooch found that the student had many isolated
skills but few of the integrated skills necessary to complete reading and spelling tasks.
(S. 381.) She concluded that the student demonstrated significantly weaker academic
skills when compared to her xx-grade classmates. (S. 382.) Ms. Gooch made multiple
recommendations regarding the students instruction in reading, writing, and math. (S.
383.)
10. The Team noted that the psychoeducational evaluation did not identify a processing
disorder and as such, no learning disability. (S. 355.) The Team noted that Ms.
Millwood concluded that there was no significant difference between the students
general ability to process language and her general ability to process visual information,
noting her observation at the meeting that testing results of cognition for young children
. . . has been shown to be unstable and should not be used to predict future achievement.
(S. 355.) The Team concluded that the student did not require special education services
because she did not have an identified disability. (S. 355.) The parents did not disagree
574

with the conclusion of the Team at that time. (S. 361.) Although the student was not
identified as eligible for special education, she continued to receive individualized
services through her PLP. (S. 355.) The Team increased the students literacy support
from 2 to 4 hours per week, noting that the student was significantly below grade level in
reading and writing. (S. 355.) The Team noted that the Child Study Team from Rowe
School and Yarmouth Elementary School would meet in the spring to discuss the
students needs as she transitioned into xx grade at Yarmouth Elementary School the
following year. (S. 355.)
11. In May 2009, the student received an occupational therapy screen from Todd Metcalf,
MS, OTR/L, as a result of a referral from the schools Child Study Team due to concerns
regarding visual processing based on her limited reading ability. (S. 348-349.) . Mr.
Metcalf recommended that the student be further evaluated to determine how extensive
her visual processing challenge was. (S. 349.)
12. Also in May 2009, the parents discussed with the students pediatrician her testing results
and provided evaluation scales for school staff to fill out for evaluation of potential
Attention Deficit Hyperactivity Disorder. (P. 77.) The students pediatrician concluded
that the questionnaires were not clear enough to justify considering medication, which
school staff had suggested. (P. 78.)
13. During xx grade, the student became frustrated because other children were reading and
writing while she could not. (Testimony of students mother.) She began to feel badly
about not being able to take part with friends who were reading and writing books
together. (Testimony of students mother.) The student, throughout her education, has
been very motivated to read and progress at the same rate as her peers. (Testimony of
students mother.)
XX grade (2009-2010)
14. The student attended xx grade at Yarmouth Elementary School. (S. 397.) Pursuant to her
PLP, the student received small group support in math 3 to 4 days a week for 30 minutes
with the instructional support staff as well as small group support five days a week for 45
minutes with the instructional support staff. (S. 415-S.416.) Karen Rusinek, a special
education teacher who provided the students PLP services, observed that the student was
very easily distracted. (Testimony of Rusinek.) In November 2009, partway through her
xx grade year, the students literacy services increased to three hours and 20 minutes a
week with instructional support staff. (S. 416.)
15. In xx grade, Ms. Rusinek utilized the Wilson Reading System as the main phonics
program with the student and supplemented that program with phonemic awareness
drills, Lindamood Bell sight words, the Lexia computer program, and fluency instruction.
(Testimony of Rusinek.)
16. In November 2009, Julie Fraser, the schools psychological services provider, conducted
an observation pursuant to a re-referral of the student to special education. (P. 85-88.)
Ms. Fraser indicated that the student appeared to benefit from small group, targeted skill
575

instruction focusing on phonics and phonemic skills, sight word development, and
reading fluency. (P. 88.) She also recommended continuing the students writing skills
development through classroom-based instruction and explicit phonics-based instruction
to build automaticity in spelling. (P. 88.) .
17. The IEP Team met following the observation by Ms. Fraser. (S. 329-333.) The students
xx grade regular education teacher, Laura Skowronski, reported that the student was
making good gains in writing and math although she required a lot of math instruction
to be read to her and she needed additional support in writing. (S. 330.) The students
special educator, Karen Rusinek, who was providing services in the Learning Center
pursuant to the students PLP, reported that the student was reading at a level 4 in the
Developmental Reading Assessment (DRA) and that although her fluency was still
weak, she was able to read much more than previously. (S. 330.) Jodi McGuire, the
school departments Director of Instructional Support, considered Ms. Rusinek to be the
best literacy teacher in the school department and a valuable resource for all students
needing literacy support regardless of special education eligibility. (Testimony of
McGuire.)
18. At the meeting, Ms. Rusinek observed that the student had some anxiety about reading.
(S. 330). Ms. Fraser reported her opinion that overall the student was benefiting from her
current programming and advocated continuing the same level of support. (S. 330). The
students regular education teacher reported that the literacy teacher was working with
the student in a group on letter/sound connections and that although the student was
making regular and steady progress she would sometimes get upset that she could not
read what she had written. (S. 330.) The Team again agreed that the student did not
require specially designed instruction as a student with a learning disability although the
Team endorsed support of three hours and twenty minutes in literacy instruction each
week and two hours of instruction in math pursuant to a PLP. (S. 332.) The Team filled
out another Learning Disability Evaluation Report, noting that the student did not have a
disorder of a basic psychological process that would qualify her as learning disabled. (S.
323.) The students mother testified that the parents agreed with this conclusion because
they trusted that the school was doing what it needed to do to figure out what the
students needs were. (Testimony of mother.)
XX grade (2010-2011)
19. The student remained at Yarmouth Elementary School for xx grade. (S. 393.) Ms.
Skowronski remained the students regular education teacher and Ms. Rusinek remained
her service provider for PLP services. (Testimony of students mother.) In the fall, the
student took the standardized NECAP and NWEA tests. (P. 92 & P. 94.) On the
NECAP, the student scored in the 1st percentile in reading, substantially below proficient,
and in the 11th percentile in math, partially proficient. (P. 92.) On the NWEA, the
student scored in the 14th percentile in math and the 1st percentile in reading. (P. 94.)
The parents received these results from the school in October 2010 and immediately
requested a meeting with Ms. Rusinek and Ms. Skowronski. (Testimony of students
mother.) At the October 29, 2010, meeting, Ms. Rusinek reported that the student was
not progressing as quickly as she had hoped. (Testimony of students mother.) When the
576

parents asked what else could be done, Ms. Rusinek reported that the school had done all
the testing it was allowed to do and that a long enough period of time had not elapsed
since prior testing to do more. (Testimony of students mother.) Ms. Rusinek suggested
that the parents speak to their pediatrician, citing examples of the students inability to
focus, and suggesting medication might help. (Testimony of students mother.)
20. The students parents spoke to their pediatrician, who suggested a full
neuropsychological evaluation and gave them names of recommended service providers.
(Testimony of students mother.) The family researched options and settled on Dr.
Marcia Hunter as an evaluator. (Testimony of students mother.) On December 3, 2010,
the students parents provided Dr. Hunter with a nonrefundable retainer. (P. 123.)
21. On December 17, 2010, the students IEP Team met. (S. 309.) According to the referral
form of the same date, the students classroom teacher and her parents referred her for
evaluation for special education services at that time. (S. 316.) The referral form
indicated that there were social and emotional concerns as well as academic concerns for
the student in the areas of reading, written language, spelling, and mathematics. (S. 316.)
22. At the IEP Team meeting, the parents expressed concern that the student could be
required to stay back as well as frustration that their own concerns about the students
academic skills when she entered school were dismissed by school staff. (S. 310.) The
parents expressed confusion as to why the school had no answer as to the reason for the
students inability to learn at the same rate as her peers. (S. 310.) They also noted that
the student was not happy. (S. 310.) The parents were observing the student withdraw
from her peers and express anxiety about having to perform in any capacity, including
sports. (Testimony of students mother.)
23. At the meeting, Ms. Skowronski indicated that the student was very social and enjoyed
being with her friends in the classroom. (S. 310.) The parents, the students regular
education teacher, and the students special education teacher all noted an increase in the
students anxiety level. (S. 310.) The students mother noted that, at home, the student
was always on the move, which made it difficult for her to complete tasks. (S. 310.) Ms.
Rusenik reported on the students progress in reading in the Learning Center, noting that
the student was working on sight words, phonemic skills, and her reading level. (S. 310.)
Specifically, she noted that in September 2010, the student could read 124 of 150 sight
words and by December 2010 she was able to read 163 out of 175 sight words. (S. 310.)
With regard to phonemic skills, in September 2009, the student had obtained 5 out of 10
phonemic skills needed to improve overall reading; in September 2010, the student had
obtained 8 out of 10 such skills; and in December 2010, she remained at the 8 out of 10
skill level. (S. 310-311.) With regard to her reading level, Ms. Rusinek reported that in
September 2009, the student was reading at a xx reading level; in September 2010, she
was at a mid-xx grade reading level; and in December 2010, she was at an end of xx
grade reading level. (S. 311.) Ms. Rusinek expressed concerns that the student had lost
reading skills over the summer and that it was taking her longer than others to pick those
skills back up. (S. 311.) Mr. Rusinek also noted that when a new skill was introduced,
the student often regressed with prior skills. (S. 311.) The parents expressed concern that
577

the student continued to mix up letters and had difficulty sequencing sounds. (S. 311.)
Both the students mother and Ms. Rusinek agreed that the student was using coping
mechanisms rather than learning how to read correctly. (S. 311.)
24. The Team also reviewed the special education referral process and began to discuss the
necessary evaluations. (S. 311.) The students mother indicated that the students
pediatrician suggested a neuropsychological evaluation and reported that the family was
on the waiting list for Dr. Marcia Hunter to complete an evaluation in January. (S. 311.)
The students mother requested that Dr. Hunter and school staff have a collaborative
process. (S. 311.) Ms. Fraser noted that school district might want to provide
supplemental information to the neuropsychological evaluation. (S. 311.) Annie Ouimet,
Instructional Strategist for the school department, reported that because the student was
assessed only one-and-a-half to two years ago, the district could not have reevaluated her
sooner. (S. 311.) She also noted that even if the student had been identified as eligible for
special education during the prior referral process, her programming might not have
looked any different than what she had received in the Learning Center. (S. 311.)
25. Also at the meeting, Ms. Rusinek reported that she had met with the students team
(apparently the team overseeing the students PLP) to increase reading time for the
student to 8 hours 30 minutes of literacy support per week. (S. 311.)
26. On January 27, 2011, the parents agreed to school testing as approved in advance so that
it would not interfere with the testing already paid for to Dr. Hunter. (S. 313.) As such, at
that time, the parents consented only to classroom observation. (S. 313 & S. 315.)
27. On January 26 and February 11, 2011, the student was evaluated by Dr. Hunter. (S. 3.)
The parents had a meeting with Dr. Hunter on March 24, 2011, to obtain her initial
feedback although Dr. Hunters report was not completed. (P. 645.) Dr. Hunter reported
to the parents that the student was clinically very unusual in that the right hemisphere of
her brain was not operating and the left hemisphere of her brain dominated. (Testimony
of students mother.) Dr. Hunter diagnosed the student with a non-verbal learning
disability, but noted that most children with such a disability compensate by reading.
(Testimony of students mother.) Dr. Hunter also diagnosed the student with dyslexia,
which inhibited her ability to cope with her non-verbal learning disability. (Testimony of
students mother.) Finally, Dr. Hunter diagnosed the student with ADHD. (Testimony of
students mother.) Dr. Hunter provided the parents with reading materials and
recommended that the student would be best suited in the regular classroom and gifted
and talented programming, rather than remedial programming, because the student would
model the behavior she observed in other students. (Testimony of students mother.)
28. At some point in the spring of 2011, the student took the NWEA and scored in the 35th
percentile in math and the 4th percentile in reading, (P. 204.) In reading, the student
showed growth of 16 compared to typical growth of 17. (P. 204.)
29. On April 8, 2011, the students IEP Team met again because even though Dr. Hunters
report was not yet available, school staff wanted to meet its 45 day legal obligations. (S.
578

292; Testimony of McGuire.) The IEP team agreed that the parents would contact the
school when Dr. Hunters report was ready. (S. 294.) The parents emailed and called Dr.
Hunter seeking her written report before it was provided in mid-May. (Testimony of
students father.)
30. In her evaluation, Dr. Hunter utilized a clinical interview and a record review and also
conducted multiple tests, including the WISC-IV Integrated; the Woodcock-Johnson IIINormative Update Tests of Achievement; Rey Osterreith Complex Figure Design;
Hooper Test of Visual Organization; Incomplete Sentences; Childrens Color Trails Test;
Rapidly Recurring Target Figures Test; Millon PreAdolescent Clinical Inventory;
Achenbach Child Behavior Checklist; Behavior Reading Inventory of Executive
Function; and Social Responsiveness Scale. (S. 3.) The students parents and teachers
reported puzzlement over the students mix of skills and deficits. (S. 4.) Her parents
noted early signs of advanced language skills as well as problems of hyperactivity and
distractibility. (S. 4.) The student was reported to be good-natured as well as anxious,
friendly and outgoing, and very social, although her teacher reported increasing anxiety
that compromised her classroom focus. (S. 6.) In particular, the student was perceived to
exhibit a painful awareness that her learning was different from that of her peers and that
her difficulties were apparent to her classmates. (S. 6.)
31. Of particular note to Dr. Hunter was a 1st percentile score in perceptual reasoning on IQ
testing as compared to an 82nd percentile score in verbal comprehension in IQ testing. (S.
10; Testimony of Hunter.) When the parents asked about the 1st percentile score, Dr.
Hunter reported that it was probably not reliable because it was so low compared to other
scores and indicators and that the student would likely obtain a different score if the test
were repeated in a month. (P. 164: Testimony of Hunter.) Dr. Hunter found that although
the number was not necessarily valid, the information it generated was important.
(Testimony of Hunter.) With regard to why the students perceptual reasoning had been
in the average range when the student was evaluated by Ms. Millwood at age xx, Dr.
Hunter opined that the same test became more sophisticated as the student got older and
began to measure more about perceptual reasoning. (Testimony of Hunter.) At hearing,
Dr. Hunter acknowledged that the students perceptional reasoning scores could have
been impacted by attentional issues, but noted that she had considered it in her evaluation
and concluded that lack of attention could have contributed to the low score but was not
the entire cause of it. (Testimony of Hunter.) She was aware that the school department
had suggested that the parents meet with her and Dr. Kaufman, in particular to discuss
this score, but that the family did not give her permission to do that. (Testimony of
Hunter.)
32. Dr. Hunter observed that the student had a distracted air and was inattentive during the
initial interview but was easily redirected. (S. 7-8.) Dr. Hunter found that the student
gave a good effort across tasks of the evaluation and considered the results to be a valid
reflection of her current functioning. (S. 8.)
33. Dr. Hunter found that the students neurocognitive profile was highly defined and
characterized by significant skew between cognitive domains. (S. 14.) She reported that
579

the students intellectual profile was evident in strong verbal skills, as reflected in a
verbal IQ score in the 82nd percentile, but her ability to actualize this capability was
compromised by weakness of higher level, integrative functions that were critical to the
mobilizing of cognitive resources. (S. 14.) Dr. Hunter found that the neurocognitive data
suggested a dominance of left hemisphere brain functions with significant weakness
maximal to frontal and right hemisphere regions. (S. 14.) She reported that the functional
impact was evident as poor visualspatial analysis, variable selfregulation, weak
working memory, erratic processing speed, distractibility, and problems with fluent
processing of complex inputs, including social/emotional information. (S. 14.)
34. Dr. Hunter reported on a variety of neurocognitive skills. With regard to memory, Dr.
Hunter found that the students skills were variable, with marked inconsistency in recall.
(S. 14.) Dr. Hunter also found that the student showed weakness with tasks calling for
perceptual analysis and spatial organization. (S. 14.) She concluded that the students
sensorimotor skills were atypical. (S. 14.) With regard to language, Dr. Hunter
concluded that the students receptive and expressive language abilities were welldeveloped, that she had an excellent vocabulary, and that she was interested in language.
(S. 14.) She noted, however, that the student exhibited some problems with
comprehension and her interpretation of speech could be overly literal and concrete. (S.
15.) Here, given that the students academic achievement and language had been
consistently below grade level and her strong verbal IQ, among other factors, Dr. Hunter
diagnosed the student with a learning disability in reading and written language. (S. 15.)
Dr. Hunter observed that the student showed variable reasoning abilities. (S. 15.) Finally,
Dr. Hunter concluded that the students areas of weakness included significant
vulnerability within the domains of executive mental functions including variable
attention and problems of self-regulation, difficulties which impacted her memory,
processing speed, self-monitoring, and emotional modulation. (S. 15.)
35. Dr. Hunter noted that the student had several areas of challenge that required specialized
teaching knowledge, instruction, and support. (S. 16.) She recommended: intensification
of remedial instruction, a systematic program of instruction, differentiation of
methodology to address areas of neurocognitive weakness, attention to the role of
environment, specialty training of instructors, attention to motor issues, and attention to
social/emotional vulnerabilities. (S. 16.) ..
36. Among her general recommendations, after listing the students diagnoses, Dr. Hunter
stated in her report, [m]edication that targets self-regulation, anxiety, and distractibility
may be most helpful. (S. 19.) At hearing, Dr. Hunter clarified that that language in the
report was intended to indicate to the students medical providers that if medication was
under consideration at all, medication targeting self-regulation, anxiety, and distractibility
would likely be the most helpful. (Testimony of Dr. Hunter.)
37. On May 11, 2011, the parents met with Ms. McGuire to discuss how the Hunter report
would be shared. (P. 180.) The parents remained concerned that the report would not be
kept confidential and that some of the students lowest scores or her suicidality would be
shared in the community. (P. 180; testimony of students mother.) After the meeting, the
580

students mother emailed Ms. McGuire and Ms. Jones to report that she would drop off
the evaluation later that day, requesting that only Ms. McGuire and Ms. Jones review it.
(P. 180.) The students mother requested that the evaluation not be part of the students
permanent file, but instead a note be included in the file indicating that the evaluation
would be made available upon request. (P. 180.) The students mother also requested
that the report be returned to her following the IEP Team meeting that was to occur on
May 13. (P. 180.) The students mother specifically requested that Ms. Jones have the
chance to review the evaluation and present appropriate items to the IEP Team later that
week so that the Team could begin to discuss support strategies for the student. (P. 180.)
The students mother also noted that Dr. Hunter was available for any questions from Ms.
Jones, but that she would not attend the IEP Team meeting on May 13. (P. 180.) Ms.
Jones never contacted Dr. Hunter with any questions. (Testimony of Jones.) Ms.
McGuire never contacted Dr. Hunter with any questions although she had concerns about
the validity of the 1st percentile perceptual reasoning score. (Testimony of McGuire.)
38. Prior to Dr. Hunters evaluation, there had been no indication of a systemic evaluation of
the students attention or executive capacities. (Testimony of Kaufman.) Ms. McGuire
did not necessarily agree with Dr. Hunter that the student had a non-verbal learning
disability, testifying at hearing that she noted that Dr. Hunter often reached such a
diagnosis in her evaluations and that she still did not know if the student had a non-verbal
learning disability. (Testimony of McGuire.) Dr. Kaufman found the discrepancies in
perceptual reasoning scores between the Millwood and Hunter evaluations to be
extremely unusual statistically and clinically. (Testimony of Dr. Kaufman.) He opined
that the more likely explanation for the drop in the students scores between the two
evaluations was anxiety and distractibility in the testing by Dr. Hunter. (Testimony of
Dr. Kaufman.) He also took substantial exception to Dr. Hunters diagnosis of nonverbal leaning disability. (Testimony of Dr. Kaufman.)
39. On May 12, 2011, the students mother met with Ms. McGuire and Ms. Jones for over
two hours to review Dr. Hunters report. (Testimony of students mother; testimony of
Jones.) During the meeting, Ms. McGuire and Ms. Jones took notes on the report; Ms.
Jones noted that the report would qualify the student for special education and now the
effort would be on putting together a program. (Testimony of students mother; testimony
of Jones; testimony of McGuire.) Ms. Jones took down her general impressions from the
report but not particular scores. (Testimony of Jones.)
40. On May 13, 2011, the students IEP Team met again. (S. 285.) The Team reviewed
several pages that had been excerpted by the family from Dr. Hunters report, outlining
the students learning style, referencing her diagnoses, and making recommendations. (S.
286; S. 1448-1456.) The Team also discussed the possibility of administering further
assessments. (S. 286.) Ms. Rusinek reported that the student was reading at a mid-xx
grade reading level. (S. 286.) She noted that although the students fluency skills were
lower, she was able to use strategies independently in reading and her decoding and
comprehension skills were improving. (S. 286.) Ms. Jones shared the information that she
had obtained from Dr. Hunters report, including the diagnosis of a reading disability,
consistent with the school staffs perception, as well as a non-verbal learning disability.
581

(S. 286.) The Team reviewed Dr. Hunters educational recommendations. (S. 286.) The
students regular education teacher, Ms. Skowronski, reported that the student appeared
uncomfortable being supported in the regular education classroom. (S. 286.) The Team
also discussed the need for further assessments to determine the students eligibility for
special education services. (S. 286.) The Team concluded that the student required the
following assessments: Key Math Assessment, Gray Oral Reading Test (GORT-4), CTOPP, and an occupational therapy evaluation. (S. 286.) On May 13, 2011, the parents
consented to the additional testing. (P. 184.)
41. Ms. Ouimet administered the C-TOPP and the Key Math Diagnostic Assessment to the
student on May 31, June 1, and June 3, 2011. (S. 268.) The student performed in the
average range on all subtests and her standard score in the Key Math assessment. (S. 270271.) On the C-TOPP, the student scored in the average range in all areas of
phonological awareness, phonological memory, and rapid naming. (S. 268-270.)
42. Tim Reidman, MOT, OTR/L, performed an occupational therapy evaluation of the
student in late May 2011. (S. 275-280.) He concluded that her visual perceptual, visual,
and fine motor skills were in the average range. (S. 280.)
43. Dr. Christopher Kaufman became involved with the students case via contract with the
school department at some point in approximately May of 2011 to provide consultation
regarding the students reading instruction. (Testimony of McGuire.)
44. On June 10, 2011, the students IEP Team met again. (S. 260-265.) Ms. Ouimet
introduced the purpose of the meeting as to review the Learning Disability Evaluation
Report to look at what information would be needed to fill it out. (P. 715 (recording of
June 10, 2011, IEP Team meeting)). The Team reviewed the evaluations of Ms. Ouimet
and Mr. Reidman, with both evaluators explaining their results. (S. 261.) In addition,
Ms. Rusinek reviewed the results of her administration of the GORT-4, explaining that
the student scored in the very poor range in her reading rate, in the below average range
for accuracy, in the poor range for fluency, and in the average range for comprehension.
(S. 261; S. 273.) Ms. Rusinek reported that the student had improved in her sight word
knowledge from 189 out of 200 in April 2011 to 342 out of 350 in June 2011. (S. 262.)
45. The meeting minutes indicate that the Team considered completing a Learning Disability
Evaluation Report, but rejected this option at the request of the students parents. (S.
264.) The parents also sought additional outside evaluations. (S. 262.) The parents
asked that the students services remain the same at that time. (S. 262.) The parents
expressed a desire for optimal programming to be provided to the student. (S. 263.) Ms.
Jones reviewed the Learning Disability Evaluation Report with the Team, stating to the
parents that it would be important for Dr. Hunter to identify the key processing areas that
were impacting the student's difficulties with reading. (S. 263.) Ms. McGuire suggested
that the parents might want to meet with Dr. Hunter and provided them with a blank
Learning Disability Evaluation Report, noting that Dr. Hunters input was required for
them to complete Part A of the document. (S. 263.) ..

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46. At hearing, Ms. McGuire testified that the indication in the record that the document was
not filled out at the parents request was a reference to the parents not being willing to
provide the entirely of Dr. Hunters report for the students file. (Testimony of
McGuire.) The parents, however, deny that they were hesitant for her to be identified and
expressed confusion, in the record, as to why the student was not identified at the June
2011 meeting. (Testimony of students mother; P. 227.)
47. Dr. Hunter recommended Victoria Papageorge as a resource to help develop the students
educational plan. (Testimony of students mother.) Dr. Hunter felt that the student was
within a subset of children requiring the most comprehensive assessment and that the
collection of as many data points as possible would be useful. (Testimony of Hunter.)
The parents arranged with Ms. Papageorge to conduct further assessments of the student.
(Testimony of students mother.)
48. On July 6, 2011, Ms. Papageorge conducted an educational evaluation of the student. (S.
231-258.) .. Ms. Papageorge concluded that the student had above average verbal
abilities - both receptive and expressive - while she experienced weaknesses with visual
spatial analysis, working memory, uneven processing speed, distractibility, and fluid
processing of complex information. (S. 252.) She also found that in terms of executive
functioning, the student exhibited weaknesses in attention and self-regulation directly
impacting her memory, processing speed, self-monitoring, and emotional response. (S.
252.) Ms. Papageorge opined that the student demonstrated significant impairment in the
non-verbal realm, which directly impacted her academic performance. (S. 252.) Ms.
Papageorge noted that the student showed below average performance in the area of
elision, sight word recognition and word attack skills, indicating that the student was not
stable with fluent processing of phonemes which in turn impacted her ability to decode
accurately. (S. 252.) She also noted that when a timed component was added, the
students performance dropped dramatically. (S. 252.)
49. Ms. Papageorge expressed concern that the student had been receiving instruction for two
years in the Wilson Reading System but had not progressed even one third of the way
through the program, even though it was a 12 step program designed to be completed
within three years. (S. 252.) Ms. Papageorge also provided recommendations for
academic instruction of the student. (S. 254-256.) With regard to reading instruction, she
suggested several Lindamood Bell programs, including the LIPS program, the Seeing
Stars program, and the Visualizing and Verbalizing for Language Comprehension
program. (S. 254-255.) Ms. Papageorge suggested the Every Day Math program as well
as the problem-solving program Math Message Notebooks during direct remedial
instruction 2 to 3 times a week for 30 minutes each session to learn, practice, reinforce,
and master basic calculation skills for whole numbers, fractions, and decimals. (S. 258.)
50. Ms. Papageorge did not support continued programming for reading and encoding
through the public school setting because the student had not made expected gains
through the Wilson Reading System or the LLI intervention program due to their
inappropriateness for her individual learning profile. (S. 256.) Ms. McGuire attributed
the students slow progress in the Wilson Reading System to inattentiveness and anxiety.
(Testimony of McGuire.) Ms. Rusinek saw no need to alter the students primary
583

program from Wilson to Lindamood Bell. (Testimony of Rusinek.) She believed that the
student was making sufficient progress with Wilson. (Testimony of Rusinek.)
51. The Lindamood Bell Seeing Stars program develops phonemic awareness and sensory
cognitive function of symbolic imagery; the Visualizing and Verbalizing program
develops cognitive processing of contextual imagery. (Testimony of Bogdanski.)
52. On July 20, 2011, the students mother wrote to the school district indicating that the
family was declining the school departments offer of Extended School Year
programming and instead seeking private tutorial services, for which they would seek
reimbursement. (P. 226.)
53. On July 26, 2011, Ms. McGuire responded that the school department had no
information to suggest that the students current programming was not meeting her needs.
(P. 225.) Ms. McGuire also reiterated the school districts offer of Extended School Year
services. (P. 225.) Ms. McGuire indicated that we do not disagree on special education
eligibility but that special education regulations dictated that IEP Team members
document a learning disability with specific psycho-metric data and because the
necessary data from Dr. Hunters evaluation had not provided to the Team, it was not
possible for them to complete Learning Disability Evaluation Report. (P. 225.) Finally,
Ms. McGuire stated that it was the Teams understanding that it would meet prior to the
beginning of the upcoming school year to review the testing results the family had
indicated would be completed during the summer and to complete the Learning Disability
Evaluation Report at that time. (P. 225.)
54. On July 28, 2011, the student underwent a diagnostic evaluation at the Lindamood Bell
Center in Arlington, Massachusetts. (P. 256.) The testing summary indicated that the
student scored significantly below grade level on a series of assessments, including the
Woodcock Reading Mastery Test-RU, the Slosson Oral Reading Test-R3, the Wide
Range Achievement Test-4, GORT-4, and the Lindamood Auditory Conceptualization
Test. (P. 256-258.) The student showed weakness primarily with symbolic imagery and
secondarily with word retrieval. (Testimony of Bogdanski.) Julie Bogdanski, the Center
Director and the students evaluator, recommended use of the Seeing Stars program and
the Visualizing and Verbalizing for Language Comprehension and Thinking program in
daily instruction of four hours a day for five days a week for an initial period of 200 to
240 hours (10 to 12 weeks). (S. 259.) The family did not wish for the student to leave
public school, so researched local options for accelerating her progress in literacy skills
so that she could participate meaningfully in a public school education. (Testimony of
students mother; testimony of students father.) The parents researched options in
Maine, but concluded that the only option was for the student to attend a concentrated
program at the Lindamood Bell Center in Arlington. (P. 242; testimony of students
mother.)
55. On August 22, 2011, the parents informed the school department that they intended to
provide programming for the student at the Lindamood Bell Center and seek
reimbursement for all costs associated with the placement. (P. 255.) The parents
requested that the school department provide the student with appropriate classroom
584

instruction upon her return and that her teacher be educated in teaching methods that
would be appropriate given her diagnosis and disability profile. (P. 255.) At that time,
the parents also provided the school department with copies of the Lindamood Bell
Center testing and the Papageorge evaluation. (P. 255; testimony of students mother.)
56. By September 1, 2011, the parents were still asking the school department to specify
what data was required to make a determination of eligibility for the student. (P. 283.)
The parents reiterated that Ms. Jones had taken notes on the Hunter report in May and
that the parents had assured the school department that all required data would be
available to the Team and that they still did not understand what was needed of them. (P.
283.)
57. In September 2011, Ms. Rusinek prepared a report of the students progress during xx
grade. (S. 581.) In September 2010, the student was able to identify 124 out of 150 sight
words; in June 2011, she was able to identify 342 out of 350 sight words. (S. 581.) She
had mastered 8 out of 10 phonemic skills in September 2010 and 10 out of 12 in June
2011. (S. 581.) The student began xx grade reading Book 2 in the Wilson Reading
System and ended the year reading in Book 4.2. (S. 581.) In September 2010, she was
reading at a mid-xx grade level in the Developmental Reading Assessment and at a midxx grade level in May 2011. (S. 581.)
xx grade (2011-2012)
58. The student began programming at the Lindamood Bell Center in Arlington in
September 2011. (Testimony of students mother.) Although the program is usually
delivered in four hour per day blocks, the Center developed a six hour per day program to
allow the student to abbreviate the time spent in Massachusetts. (Testimony of
Bogdanski.) The student was provided one-on-one instruction in the Seeing Stars
program. (Testimony of Bogdanski.) The family commuted many days but also stayed
with friends in the area a night or two each week during the eight week program.
(Testimony of students mother.)
59. The students IEP Team met again on September 16, 2011. (S. 203.) The Written Notice
from the meeting indicates that the students mother shared the scoring sheet from Dr.
Hunters evaluation, which the Team found was sufficient to complete the Learning
Disability Evaluation Report. (S. 204.) The Team found the student eligible for special
education services as a student with a specific learning disability. (S. 199-203.) The
Team did not, however, list a non-verbal learning disability or the 1st percentile
perceptual reasoning score that the student received in Dr. Hunters testing as bases for
its conclusions. (S. 202: Testimony of McGuire.) On the Learning Disability Evaluation
Report, the Team found that the student had a disorder in one or more of the basic
psychological processes as demonstrated by a score one standard deviation below the
mean in two or more areas. (S. 199.) The Team referenced data from Dr. Hunters
evaluation, Ms. Papageorges evaluation, and the school districts previous and current
evaluations and observations. (S. 204.) The Team concluded that the students
psychoeducational profile revealed a pattern of strengths and weaknesses in performance,

585

achievement, and intellectual functioning that was consistent with the identification of a
specific learning disability. (S. 202.)
60. At the Team meeting, the family expressed interest in being allowed time to draft goals at
the same time that the school staff was doing so with the parties agreeing to share the
goals so that a draft IEP could be discussed at the IEP Team meeting in October 2011.
(S. 204.) At the meeting, the family expressed concern that the student had not been
identified as having a learning disability sooner. (S. 205.) They requested compensatory
educational services, which Ms. McGuire denied. (S. 205.) The parents advocate, Joan
Kelly, requested that Ms. Rusinek obtain training in Lindamood Bell programming,
because she was to resume the students special education instruction when she returned
to school and she had received initial Lindamood Bell training several years earlier. (S.
205; testimony of Rusinek.) On September 22, 2011, Ms. McGuire wrote to the parents,
denying their request for reimbursement for the cost of the students attendance at the
Lindamood Bell Center. (S. 198.)
61. On October 19, 2011, the students IEP Team met again to draft the IEP and prepare for
the students return to school on November 7, 2011. (S. 179.) The Team proposed goals
in the areas of reading and spelling as well as consultation between the students special
education teacher and her Lindamood Bell instructor to support her transition back to
school. (S. 179-180.) It was agreed that the students special educator would observe at
least one lesson via video as well as consult with Ms. Bogdanski at the Lindamood Bell
Center and that consultation between the two could continue as needed. (S. 180;
Testimony of Julie Bogdanski.) The Team agreed that additional data from the
Lindamood Bell program regarding the students progress was necessary to inform the
draft goals. (S. 180.) Ms. Bogdanski agreed to provide final assessment data upon the
students completion of the Lindamood Bell program. (S. 180.) The Team agreed not to
add math and writing goals to the IEP because supports for math and writing were
addressed within the section of the IEP dedicated to supplemental aids and services,
modifications, and supports. (S. 180.) Ms. McGuire reported that although Ms. Rusinek
would be utilizing the Seeing Stars program with the student, specific program names
would not be included in the goals; Dr. Kaufman added that the school departments
refusal to include a particular methodology was based on its concern that it would limit
the special educators ability to utilize multiple programs. (S. 181.) The Team agreed
that during the first three weeks of the students return to school her services would
specifically be in the area of reading fluency. (S. 181.) Ms. McGuire indicated, in
response to the students mothers concerns, that Ms. Rusinek, who had originally
received her Lindamood Bell training in 2004, would receive additional training in the
Seeing Stars program prior to her beginning of instruction of the student in reading
fluency. (S. 182.) Judy Shank, the school departments Title I reading teacher, also
attended the training. (Testimony of Ms. McGuire.) The students mother also
questioned whether the student needed to go to the Learning Center for reading
instruction because the student did not wish to attend the Learning Center and that she
did not feel part of her regular education classroom last year due to her frequent trips to
the Learning Center. (S. 182.) Because the Team did not complete drafting of the IEP, it
was scheduled to reconvene on November 9, 2011. (S. 179.) The parents felt they were
586

being asked to sign off on a program that had not been fully fleshed out yet, including
details such as whether delivery of the specially designed instruction would all be during
the school day, and if so during what portions of the day. (Testimony of students
mother.)
62. Lindamood Bell Center staff did not find the student to be anxious during instruction; on
the contrary, she appeared very happy with the instruction, was very motivated, and
responded positively to the reward system. (Testimony of Bogdanski.) .
63. At the conclusion of the students 234 hours of Seeing Stars programming at the
Lindamood Bell Center, testing showed that her score on the GORT-4 had increased from
the 2nd to the 5th percentile and from the 1.0 to the 2.2 grade level in contextual reading
rate. (P. 324; S. 171.) In reading accuracy, the students scores increased from the 1st to
the 2nd percentile, or from a below 1.0 to a 1.2 grade level. (P. 324.) In reading fluency,
the students score also increased from the 1st to the 2nd percentile, going from below 1.0
to a 1.7 grade level. (P. 324.) In comprehension, the students scores increased from the
16th to the 37th percentile, increasing from the 2.2 to the 4.0 grade level. (P. 324.) Ms.
Bogdanski recommended that the student return for 60 to 100 hours of additional
instruction in the Seeing Stars program. (S. 174.)
64. The student greatly enjoyed her time at the Lindamood Bell Center, during which she
worked hard and regained some self-confidence. (Testimony of students mother.) .
65. The student returned to school at the conclusion of her Lindamood Bell Center program
in early November, but the parents chose not to have the student access special education
services until Ms. Rusinek attended Lindamood Bell training later that month.
(Testimony of students mother.) As a result, the student attended only regular education
classes for nearly a month upon her return, ..
66. Prior to the November 9, 2011, IEP Team meeting, the parents shared a statement of
parental concerns. (S. 163-164.) ..
67. The students IEP Team met again on November 9, 2011. (S. 165-170.) The students
IEP was developed and a draft was sent home for the parents to review. (S. 168.) The
Team revised the goal areas to include fluency, spelling, and overall reading. (S. 165.)
The Team concluded that the students instruction would include: Star Word Tasks and
words within the students reading-sight word development for 5 to 10 minutes per day;
fluency work for 20 minutes a day, divided between the Great Leaps program and the
Read Live program; text reading using books from her classroom reading instruction
including pre-teaching vocabulary, word attack skills, symbol imagery, and practice oral
reading for 20 minutes per day; and spelling through use of the Seeing Stars program and
the Rebecca Sitton Spelling Program for 10 minutes per day. (S. 167.) The parents
expressed concern that the student would not reach grade level scores in reading if her
IEP expectations were not set higher, that being in the Learning Center had not been a
positive experience for the student in past years, and that, in the past, the student had
come home every day with physical and psychological issues due to the Learning Center
587

environment. (S. 168.) The parents and Ms. Kelly requested that the student services be
delivered in a space other than the Learning Center and that the services be delivered
before the school day by staff from the departments middle school, although the Team
did not agree to those requests. (S. 168-169.) Ms. McGuire noted that teachers were not
contracted to work beyond the confines of the school day. (S. 169.)
68. Following the meeting, the students mother contacted Dr. Kaufman, to offer him full
access to Dr. Hunters report since he mentioned that he had not seen it previously. (P.
342.) The students mother noted in her email that she had told school staff that the full
report was available upon request. (P. 342.) The students mother subsequently provided
Dr. Kaufman with a full copy of the report. (Testimony of Kaufman.)
69. On November 11, 2011, Ms. Papageorge conducted a second educational evaluation of
the student. (S. 148-153.) Ms. Papageorge reported that the students cognitive
weaknesses in the non-verbal realm continued to directly impact her academic
performance in the areas of basic reading skills. (S. 152.) She recommended that the
student continue to receive Seeing Stars programming to address her continued
significant deficits in phonological and orthographic processing. (S. 153.)
70. The students IEP team met again on November 18, 2011, to finalize the students IEP.
(S. 136-A-137.) The parents also recommended modifications to the students goals.
(S. 145.) They reiterated the students dislike of pull-out services and the Learning
Center, reporting that putting her in the Learning Center impacted her emotionally and
increased her anxiety. (S. 145.) The parents expressed confusion about why the school
department would not allow for services to occur outside the Learning Center or outside
of the school day. (S. 146.)
71. The student returned to school on approximately November 7, 2011. (Testimony of
students mother.) The students special education services did not begin until December
2, 2011, because Ms. Rusinek had not yet attended the Lindamood Bell training.
(Testimony of students mother.) Once the students pull-out services in the Learning
Center began, however, the student began to fall apart. (Testimony of students mother.)
Within the first week of the provision of special education services in the Learning
Center, the student reported being upset to her parents because the Lindamood Bell
programming was not being done in the manner it had been in Arlington. (Testimony of
students mother.)
72. On November 18, 2011, the students IEP Team met again. (S. 136-A-140.) The Team
finalized the students IEP. (S. 136-A-140.) . The family rejected school staffs
suggestion that the student work with the school counselor during the school day. (S.
138.) The Team reviewed the parents statement of concerns and rejected the parents
request that special education services be provided outside the school day and outside of
the Learning Center as well as their request that the specific reading instruction
methodology be identified within the students IEP. (S. 138.) The Team also rejected the
parents request that Ms. Papageorge be allowed to monitor her instruction delivered by
Ms. Rusinek; Ms. McGuire stated that this was an internal school department
588

responsibility. (S. 139.) The students mother reported that the student had a breakdown
the prior week when she learned that she might need to access special education support
outside of the classroom. (S. 139.) The students father expressed concern that the
student would regress emotionally if she was required to receive special education
services outside of her classroom during the school day. (S. 139.)
73. The students IEP, to begin December 2, 2011 and end on November 17, 2012, called for
specially designed instruction from a special education teacher 60 minutes per day. (S.
132.) The three annual goals for the student were in the areas of spelling, reading
fluency, and reading level. (S. 129-130.) . The students IEP also called for many
supplementary aids, services, modifications, and supports, including, among others, the
ability to take dictation when needing help to get her ideas down; writing support in the
classroom; use of graphic organizers, webs, outlines, or checklists; extra time or reduced
length of assignments; use of modeling, demonstration, and opportunities for repetition;
simple, step-by-step directions; frequent check-ins to ensure that the student understood
class expectations; preferential seating; opportunities for movement breaks; and
consultation between her classroom teacher and her special education teacher for 30
minutes per month. (S. 133-134.)
74. Ms. Rusinek attended Lindamood Bell training in Arlington on November 28 and 29,
2011. (S. 113.) Once the students special education services resumed, Ms. Rusinek
structured the students daily hour of specialized instruction into the following blocks: 10
minutes of sight words, using some of the Seeing Stars sight word list and some she
identified on her own; 10 minutes of the Great Leaps program; 20 minutes of reading
texts; 10 minutes of spelling using the Seeing Stars program; and 10 minutes of the Read
Live computer program. (Testimony of Rusinek.) The mother attended the same
training. (Testimony of students mother.) The conversation between the mother and
Ms. Rusinek was strained; the students mother felt that Ms. Rusinek ignored her.
(Testimony of Rusinek; students mother.)
75. On December 8, 2011, the students parents reported to Ms. McGuire that the student was
exhibiting stress related to the pull-out services in the Learning Center and that the
student felt that the Lindamood Bell program was not being administered as it had been
in Arlington. (P. 377.) Ms. McGuire responded that she did not share concerns about the
implementation of the Lindamood Bell Seeing Stars program but suggested a meeting
time to discuss the concern further on December 12. (P. 377.) In continued email
communications, Ms. McGuire suggested that the student access school social worker
support and expressed confidence that Ms. Rusinek was implementing the Seeing Stars
program appropriately. (P. 478.) The parents responded that they were concerned that
additional pull-out services would only increase the students stress level and also that a
school guidance counselor would not be the appropriate person to provide support to the
student. (P. 478.) The parents also noted particular aspects in which they had concerns
about the implementation of the Lindamood Bell programming by Ms. Rusinek as well as
other aspects of Ms. Rusinek's provision of programming. (P. 478.) Ms. McGuire, who
was not trained in Lindamood Bell programming, never consulted with anyone other than

589

Ms. Rusinek about the implementation of the students Seeing Stars programming.
(Testimony of McGuire.)
76. On December 20, 2011, the students parents met with Ms. McGuire. (S. 113; P. 391;
testimony of students mother.) In particular, the parents were concerned that the student
had been questioned by Ms. Rusinek as to whether the Lindamood Bell program was
being implemented correctly, which greatly increased the students anxiety level. (P.
391.) When the parents reiterated their request that the student be taught by someone
other than Ms. Rusinek outside the Learning Center outside the school day, Ms. McGuire
responded that they were essentially asking that the student be removed from special
education entirely. (P. 391.)
77. The student was in tears every day during the Christmas break, and the family felt she
was in crisis. (Testimony of students mother.) On January 1, 2012, Ms. McGuire
emailed the family as a follow-up to their December 20, 2011 meeting. (S. 113.) She
reported that Ms. Rusenik shared the parents concerns about the students progress
during the 11 days she had received special education that year, between December 2 and
December 20. (S. 113.) Ms. Rusinek had reported to Ms. McGuire that the student was
exhibiting behaviors that interfered with her learning similar to those she exhibited in xx
grade. (S. 113.) Ms. McGuire also noted that the students anxious presentation and
weak executive functioning were the basis of the schools continued recommendation of
school counseling services. (S. 113.) She responded that the parents statements that Ms.
Rusinek was using inappropriate strategies, was using incorrect materials, and was not
applying the Lindamood Bell program with fidelity were unfounded; Ms. McGuire
requested that the parents avoid making assertions against Ms. Rusineks attitude and
character. (S. 114.)
78. On January 3, 2012, the students mother requested an emergency meeting of the
students IEP Team that week so that the Team could consider changes to the students
programming in an attempt to meet her needs appropriately. (S 112.) On January 9,
2012, the students mother reported to Ms. McGuire that the student was resistant to
coming to school that day and had experienced a meltdown after school. (P. 405.)
79. On January 10, 2012, the students IEP Team held an emergency meeting. (S. 108.) The
Team rejected the parents request to provide services in a room with no other students
present and by a special educator other than Ms. Rusinek, determining that issues of staff
and space were not IEP Team decisions. (S. 109.) The Team discussed possible reasons
for the frustration and anxiety about school that the student was expressing at home. (S.
109.) The parents explained that the student was experiencing a lot of difficulty,
particularly crying and stomachaches, each morning and evening at home and that since
she had begun to work with Ms. Rusenik, she did not want to come to school. (S. 109.)
Ms. Rusinek stated that Lindamood Bell Center staff had observed the student to be
anxious while there, although Ms. Bogdanski denied that. (S. 109; testimony of
Bogdanski.) Dr. Kaufman opined that the students diagnosis of ADHD was the primary
factor impacting her acquisition of reading skills, particularly speed, and reiterated that it
was important for the student to begin developing an understanding of her disability. (S.
590

109.) School staff and the parents advocate disagreed about whether one-on-one
instruction, as provided in the students IEP, required an environment with no other
student in the space. (S. 109.)
80. On January 18, 2012, the students mother emailed Ms. McGuire to report that the
student had been in tears and experiencing a stomachache since the end of school that day
and had been screaming I hate Mrs. Rusenik, I hate school, I dont want to go there
anymore, hide me forever. (P. 418.) The students mother noted that the student felt
exactly the opposite about her time in the regular education classroom. (P. 418.) The
students mother also reported that she consulted with the familys pediatrician, who
opined that it was a school-related problem that needed to be fixed. (P. 418; Testimony of
students mother.)
81. Throughout January and into February, the parents reported to the school that the student
continued exhibiting extreme anxiety and was upset about her instruction in the Learning
Center. (S.464-471.) Ms. McGuire responded that the student was not exhibiting the
same level of distress at school but again offered the support of a school counselor to
work with the student to explore the stressors and emotionality that she was experiencing
at home as it related to school. (S. 468-469.) The parents responded that they were
receiving guidance from the students pediatrician, to which Ms. McGuire responded that
school staff would be willing to hold a confidential consultation with any out of school
providers with the parents permission. (S. 468.)
82. Dr. Hunter met with the student and her mother on February 1, 2012. (P. 424; Testimony
of mother.) Dr. Hunter expressed concern about the students level of anxiety and noted
that a hallmark of learning disabilities is issues related to mood and suggested that school
staff should take the students stress level into account by significantly reducing
homework to allow time for playdates to build her social competence and confidence. (P.
424.)
83. Just prior to the students February 2012 vacation week, the parents chose to have the
student reevaluated at the Lindamood Bell Center because of her anxiety, lack of desire
to read, and frequent upset. (Testimony of students mother.) The students testing
summary on February 13, 2012, from Lindamood Bell showed regression in some areas.
(P. 425.) In particular, the students scores on the Peabody Picture Vocabulary Test, the
Detroit Tests of Learning Aptitude, the Woodcock Reading Mastery Test-NU, informal
tests of writing, and symbol imagery tests showed a decrease. (P. 425-427.) The family
took a two week February break to help calm the student, taking her to Florida to visit
with her grandparents. (Testimony of students mother.)
84. At this time, the students regular education teacher also expressed concern that the
student was not able to keep up with her peers anymore and was experiencing regression.
(Testimony of students mother.) The student was also becoming increasingly frustrated
with her family because they were not able to fix what she felt was not working about the
program. (Testimony of students mother.)

591

85. Between the February and April school breaks, the student continued to exhibit
headaches and stomachaches every day; she told her parents the program offered in the
Learning Center was confusing, was not working for her, and was upsetting because it
required to leave her regular education classroom. (Testimony of students mother.) .
86. Following the vacation week in April 2012, the student began having meltdowns on
weekends as well as weekdays. (Testimony of students mother.) Often on Saturday
mornings, she did not get out of bed. (Testimony of students mother.) She began to
withdraw from activities and refused play dates with friends. (Testimony of students
mother.) The student obsessed all day on Sunday about going to school the following
day. (Testimony of students mother.)
87. In early May, Ms. McGuire reiterated an offer to include school social work services in
the students IEP. (P. 444; testimony of students mother.) The family declined the offer
of social work services because they were concerned that a social worker was not
appropriate to help the student and because Dr. Kaufman had indicated that Dr. Hunter
would be an appropriate support in this regard; the family also declined the service
because Ms. McGuire indicated that it could occur only during the school day, which
would have meant more pull-out time for the student. (Testimony of students mother.)
88. On May 15, 2012, the student had a visit with Dr. Hunter. (P. 616.) Dr. Hunter
summarized the visit in a treatment note, indicating that the student continued to exhibit
increasing anxiety, cognitive rigidity, low self-esteem, and negativity toward school. (P.
446.) Dr. Hunter opined that because the student had a lagging skill regarding mental
flexibility and shifting of perspective, it was important for adults involved in a situation
to be flexible. (P. 446.) . Dr. Hunter suggested that the student could be masking
much of her distress at school because she was invested in pleasing others and being a
good student. (P. 446-447.)
89. Also on May 15, 2012, Ms. Rusinek measured the students progress toward her annual
goals, the only time that the students 2011-2012 IEP was graded. (S. 98.) She graded
the student as in progress on all three of her IEP goals. (S. 98.)
90. The student began to talk about not wanting to live, stating that she had nothing to live
for; she did not want to left alone in a room while at home. (Testimony of students
mother; testimony of students father.)
91. On May 18, 2012, the students IEP Team convened to discuss IEP goals, present levels
of performance, parental concerns regarding the students ability to keep up with her
classmates during reading in the classroom, Extended School Year services, and the
students upcoming transition to the middle school. (S. 85.) The parents shared Dr.
Hunters most recent treatment note. (S. 85.) The Team declined the parents request
that special education services be provided outside of the school day and by a different
special educator. (S. 85.) Goals and services to support the students social-emotional
needs were proposed but rejected by the parents. (S. 85.) Ms. Rusinek presented the
students most recent progress; in the Seeing Stars program, the student read 57 out of 70
592

words, in the Reading Fluency program, the student was at a xx grade reading level, and
in the Independent Guided Reading, the student was reading at a xx grade level. (S. 85.)
92. Toward the end of the meeting, the tone of the conversation became hostile. (P. 715
(recording of 5/18/12 IEP Team meeting).) Dr. Kaufman provided his opinion that there
was no clinical reason to provide services to the student outside the school day; that the
Learning Center was a fine and appropriate setting; and that the student needed to
understand her disability and the help that she would need to overcome it. (P. 715.) The
students mother became upset, reiterated her frustration that the school department
would not agree to any of their requests regarding how and by whom services would be
provided, and reported that the student felt bullied and threatened by Ms. Rusinek. (P.
715.) In response, Ms. Rusinek expressed resentment that she was being accused of
bullying and she noted that although the parents reported student meltdowns, she did not
observe any concerning behavior, other than anxiety that presented as increased
questions, and that she had asked the school principal to confront the student to see
what her concerns really were. (P. 715.) The students father stood and raised his voice.
(Testimony of McGuire.) Although the students fathers voice was the loudest in the
recording of the meeting, multiple parties at the meeting were engaged in emotional and
unproductive conversation, amidst mutual accusations of bullying between the parents
and Ms. Rusinek. (P. 715.) Ms. McGuire ended the meeting before any determinations
were made due to her concern that the students father was engaging in aggressive
discourse and personal attacks. (S. 85.) Following that meeting, Ms. McGuire reiterated
the offer of social work services, although Ms. McGuire continued to maintain that there
was no clinical substantiation to provide . . . services for [the student] beyond the school
day. (S. 83.)
93. On May 22, 2012, Dr. Hunter received an emergency call from the parents reporting that
the student was in crisis. (P. 653; testimony of Dr. Hunter.) Dr. Hunter suggested to the
students mother that adults see this as a crisis time when the students routine needed to
be adjusted, noting that the student had lagging skills and would not change overnight.
(P. 653; testimony of Dr. Hunter.) She suggested that the adults involved reduce the
stress on the student and increase interventions including how to read teacher cues. (P.
653; testimony of Dr. Hunter.) Dr. Hunter noted that the student had consistently
reported that her time in the Learning Center was a specific stressor and Dr. Hunters
primary recommendation was to stop her attendance there. (Testimony of Dr. Hunter.)
94. . In May 2012, Ms. Rusinek provided a literacy update regarding the student
indicating that in December 2011 she had correctly spelled 34 out of 49 Seeing Stars
words and in May 2012 she had correctly spelled 57 out of 70. (S. 89.) She reported that
the student was reading 66 correct words per minute in December 2011 and 85 correct
words per minute in May 2012. (S. 89.) Ms. Rusinek also reported that the student had
gone from a mid-xx grade reading level in December 2011 to an ending xx grade reading
level in May 2012. (S. 89.)
95. Around this time, the students parents met with the school department superintendent.
(Testimony of students mother.) On May 23, 2012, Ms. McGuire informed the parents
593

that the school department would offer the student an hour a day of reading instruction
four days a week from Judy Shank, the school districts lead literacy teacher, who was
trained in the Lindamood Bell Seeing Stars program. (S. 80.) The parents responded that
they would attempt services with the new teacher because they were trying to find a
solution that would work for the students disabilities, noting they were in a crisis
situation. (S. 81.) The student came home after her first day of instruction with the new
teacher, locked herself in a closet for two and half hours, screamed uncontrollably, and
would not eat. (S. 80; testimony of students mother.) The students mother sent an
emergency page to Dr. Hunter, who recommended crisis management of which changing
the students instructor was the first step, which had already been taken; she also
recommended therapy services outside the school; finally, she suggested rethinking how
the students needs were met as a long-term plan. (P. 654; testimony of Hunter.) .
96. On May 31, 2012 the students mother informed the school department that the student
had experienced a major breakdown the prior evening as a result of the start of the new
program. (P. 460.) The students mother reported that the student was extremely fragile
and that the change had been more that she could handle. (P. 460.) The students parents
could not imagine returning her to the program for a second day after she had gone into
crisis the night before. (Testimony of students father.) Ms. McGuire found that the
student did not display any such distress at school, noting at hearing that when students
are not happy about receiving specialized instruction, they try to avoid it, they do not
leave spontaneously to attend when it is time to go, and they do not engage once they get
there. (Testimony of McGuire.) Ms. McGuire observed that the student was accessing
her reading instruction, was engaged in it, and was making progress. (Testimony of
McGuire.) Ms. Rusinek also testified that she had never had a student present as fine at
school but in crisis at home and she could not understand the discrepancy between what
the parents observed and what she observed. (Testimony of Rusinek.) Ms. Ouimet
testified that she believed that it was inevitable that if the student were as upset at home
as the parents reported, then she would display frustration or unhappiness at school.
(Testimony of Ouimet.) She testified that she had never seen a child who did not show
frustration at school who was upset at home; she could not reconcile in her mind an
understanding of the vast difference between what she observed in the student at school
and what the parents reported they were seeing at home. (Testimony of Ouimet.) Dr.
Kaufman opined at hearing that if the student were experiencing anxiety about her
transitions into the Learning Center during the school day, she would likely exhibit
transitional stress, she would look upset, or her ears would turn red, although none of
those symptoms appeared evident to school staff. (Testimony of Kaufman.)
97. After the student was removed from special education services, the student stopped
having meltdowns. (Testimony of students mother.) By the end of the school year, the
student was interested in having play dates with friends again and began to talk about
things she wanted to do in the summer. (Testimony of students mother.)
98. On June 6, 2012 the students IEP Team met again. (S. 74.) Ms. McGuire did not invite
elementary school staff to attend, but instead invited the Yarmouth Middle School
Instructional Strategist, in hopes of mending the school departments relationship with
594

the parents. (Testimony of McGuire.) The students IEP was amended to reflect an offer
of 48 hours of Extended School Year services. (S. 67 & 74.) . The school department
rejected the parents request that the school department pay for the student to attend
Lindamood Bell instruction over the summer. (S. 76.)
99. The Team began to discuss the students transition to xx-grade and what the provision of
special education services would look like at the Yarmouth Middle School. (S. 76.) The
parents request that the students specialized instruction occur in a room with only herself
and the instructor was rejected; school department staff stated that the instruction would
occur in a Learning Center by staff trained in Lindamood Bells Seeing program. (S. 76.)
100. The parents chose not to access the Extended School Year services offered by the
school district for the summer of 2012. (Testimony of students mother.) On July 17,
2012, the students parents informed the school department that they were enrolling the
student in programming at the Lindamood Bell Center for the weeks of August 6 and
August 13 for 30 hours of instruction each week. (S. 54.) The parents explained that they
viewed this program as compensatory educational services to remedy the inappropriate
programming and lack of meaningful progress that the student had shown in her
development of literacy skills. (S. 54.) Ms. McGuire denied the parents request for
reimbursement of the summer services. (S. 54.) .
101. During the students two weeks of Seeing Stars programming at the Lindamood
Bell Center that summer, Center staff found the student to be engaged and happy
although they had to work harder to keep her attention since the Center was busier in the
summer than it had been the previous fall. (Testimony of Bogdanski.) At the conclusion
of the students two weeks of programming at the Lindamood Bell Center, the student
was retested. (P. 468.) From her February 2012 testing, she had increased scores on the
Detroit Test of Learning Aptitude, the Woodcock Reading Mastery Test, the Slosson Oral
Reading Tests, informal tests of writing, and symbol imagery tests. (S. 468-470.) She
had decreased scores, however, on the Peabody Picture Vocabulary Tests, the Wide
Range Achievement Test, the GORT, and the Lindamood Auditory Conceptualization
Test. (P. 468-470.) After finishing the program at the Lindamood Bell center, the
student was excited about returning to school, seemed like her old self, and was
participating in play dates and sports activities. (Testimony of students mother.)
xx Grade
102. The parents requested that the student not receive special education services until
the IEP Team had met. (P. 486.) Prior to a September 5, 2012, IEP Team meeting, the
parents shared some of the recommendations from Julie Bogdanski, the Director of the
Lindamood Bell Center in Arlington. (P. 486.) Ms. Bogdanski noted that the student had
finished the 1000 sight words list for reading and would need to capture new say words to
expand her vocabulary. (P. 486.) The parents requested they be able to preview all
instruction materials to capture new practice words. (P. 486.) Ms. Bogdanski
recommended that the student continue with reading practice one-on-one for three hours
a week utilizing xx-grade level reading with support. (P. 486.) . Finally, the parents

595

noted that stress impacted the students ability to learn and process, requesting that the
students environment not be distracting or noisy. (P. 486.)
103. On August 28, 2012, Dr. Hunter wrote the parents a letter, opining that the student
had become polarized with her special education teacher which was unfortunate in part
because relationships were especially critical for a child with the students profile. (P.
612.) Dr. Hunter observed that cognitive rigidity made it difficult for the student to shift,
which combined with her high sensitivity to the environment, left her particularly attuned
to non-verbal communication while her disability left her at great risk to misinterpret
those inputs. (P. 612.) . Dr. Hunter suggested the possibility of reducing the students
time in the Learning Center while increasing small group instruction in the classroom to
be supplemented by outside tutorials. (P. 612.) Dr. Hunter noted that the student
presented as anxious and discouraged about school, a core vulnerability of children with
learning disabilities because their anxiety and low self-esteem increase as the world
becomes more complex. (P. 612.)
104. On August 31, 2012, Dr. Hunter provided a summary of her opinions regarding
the students educational plan for the coming academic year, which was shared with the
school department. (P. 490.) Dr. Hunter noted the students anxiety, cognitive rigidity,
low self-esteem, and negativity towards school during the prior semester. (P. 490.) Dr.
Hunter observed that the functional impact of these symptoms was evident as the
students perseveration on her dislike of the Learning Center, her belief that her special
education instructor did not like her, and her reliance upon the style and methodology of
instruction that have been most amenable to her, namely the Lindamood Bell program.
(P. 490.) Dr. Hunter opined that it was imperative that the student have a fresh start in
the fall, characterized by flexibility in programming to simultaneously meet her
instructional needs and address her emotional distress. (P. 490.) ..
105. Dr. Hunter felt that the best way to predict the students success was to review her
prior experience having significant services be delivered in a pullout model, which had
not worked. (Testimony of Hunter.) .. Dr. Hunter opined at hearing that students need
to accept interventions, but that the students disability included a distortion of other
peoples intentions and of herself and difficulty shifting mental states. (Testimony of
Hunter.) She concluded that Dr. Kaufmans observations that the student would benefit
from acclimating to the need for services to be delivered during the school day as a
component of her disability would be more appropriate when the student was older, but at
this point in the students education, the flexibility needed to come from adults because
the student was not able to be flexible. (Testimony of Hunter.)
106. Dr. Kaufman took a more involved role with the students IEP Team during her
xx grade year,
107. Dr. Kaufman believes that untreated attentional issues related to processing have
caused the students academic problems; he recommends medication to turn on the
students ability to self regulate and to focus portions of her brain. (Testimony of
Kaufman.) Dr. Kaufman also recommends that the student have a therapeutic
596

relationship to build healthy coping and social skills. (Testimony of Kaufman.) Dr.
Kaufman opined at hearing that a processing disorder, namely ADHD, was evident at the
time of Ms. Millwoods evaluation, although because the referral to did not list
attentional issues, she was not required to evaluate for it. (Testimony of Kaufman.)
108. The students IEP team met on September 5, 2012, at which point the student had
entered xx grade at the Yarmouth Middle School. (S. 30-33.) . The school
department continued to offer consultation between Dr. Kaufman, Dr. Hunter, and the
parents to clarify the Teams understanding of various historical and current testing
results. (S. 31.) The Team determined that social work would be added to the students
IEP as an accommodation to be accessed only with parental notification and also
increased the consultation time between regular and special education teachers from
monthly to weekly. (S. 30-31.) . The parents did not feel they had a choice to put the
student in pull-out programming at school and felt that the Lindamood Bell services
provided after school by Lisa Clark would be a good fit for her. (Testimony of students
father.) They did not attempt Learning Center services in xx grade with a new teacher
because the school department was not listening to any of their suggestions, they were
not sure how well trained in Lindamood Bell the xx grade special education teacher
would be, and they felt they could not afford another failed program for the student.
(Testimony of students father.)
109. The parents again requested that the school department provide after school
tutoring for the student three hours per week instead of daytime IEP services, but the
Team rejected this request because the school department felt that due to the students
learning profile, cognitive fatigue, and attentional weaknesses, an extended day was not
recommended. (S. 32.) The parents informed the school department that the student
would not access the portion of the IEP providing specially designed instruction outside
of the general education classroom, rejecting a suggestion that the program be run as
indicated in the IEP for a trial designated period of time given that it was a new setting
for the student at the middle school. (S. 32.) Finally, the parents reported that they would
be providing the student with reading services after school and would seek monetary
reimbursement for such services based on their belief that the school department was
denying the student her right to an education by refusing to consider after school options.
(S. 33.)
110. At the September 5, 2012, IEP Team meeting, the students IEP was amended by
the addition of social work service from a school social worker for 30 minutes a week,
with a goal that the student would decrease her anxiety and episodes of distress to the
level that enables her to access special education services within the Learning Center. (S.
39 & 43.) The student has not accessed this service or the specially designed instruction
described in her IEP. (Testimony of students mother.)
111. The parents arranged for Lisa Clark, a teacher at the Aucocisco School in Cape
Elizabeth, to provide the student afterschool Lindamood Bell programming an hour-anda-half two days a week . (Testimony of students mother.) Ms. Clark is providing
Seeing Stars programming, focusing on decoding and imaging three- syllable words with
597

the goal of helping the student recognize and read multisyllable words in context to
increase her fluency. (Testimony of Clark.) ..
112. The student is having a positive experience in her regular education classroom in
xx grade at the Yarmouth Middle School; she is enjoying school and is comfortable there.
(Testimony of students mother.) The students regular education teacher is supportive
and the students mother is able to provide significant pre-teaching of classroom
concepts. (Testimony of students mother.) The students mother also provides the
student with Lindamood Bell programming at home every day. (Testimony of students
mother.) The student was brought to the Learning Center on one occasion when she
finished a test early, which was upsetting to her. (Testimony of students mother.) The
parents intend to continue with the Lindamood Bell Programming at Aucocisco School
after school. (Testimony of students mother.) The students parents believe that the
Lindamood Bell programming is the only methodology that has been successful for the
student and that it should continue being delivered one-on-one in a quiet, non-distracting
location, not during the students school day. (Testimony of students mother.) The
student is able to complete a full day of school followed by tutoring and still remain
enthusiastic about doing homework because she is excited about producing results and
keeping up with her classmates. (Testimony of students mother.)
113. Dr. Hunter recognized that it would be useful to find out if the students xx
grade program would work, although she did not think it was acceptable to employ a tryuntil-we-fail strategy. (Testimony of Dr. Hunter.) Dr. Hunter suggested putting in place
steps to set the student up to succeed in proceeding cautiously due to her significant
deterioration the prior spring. (Testimony of Dr. Hunter.)
114. The students mother provided the school with a full version of the Dr. Hunter
report in October 2012 for the students file. (Testimony of students mother.)
115. The student took the NWEA test again in the fall of 2012. (P. 495.) She
obtained a score of 204, the 27th percentile, in math and 188, the 9th percentile, in reading.
(P. 495) ..
116. The students parents report that the student now has good friends, is engaged in
extracurricular activities, and socially seems like a normal xx-year-old girl. (Testimony
of students mother.)
117. The parents expended the following for the students Lindamood Bell evaluation
and programming:
$645 to Lindamood Bell Center for July 2011 evaluation
$19,492.20 to Lindamood Bell Center for program fee for 10 weeks in
September to November 2011
$5,643 to Lindamood Bell Center for program fee for 2 weeks in August
2012
$273 in tolls traveling to and from Lindamood Bell Center during the
above three time periods
598

$3,893.13 in mileage, incurred at IRS reimbursable rate, traveling to and

from Lindamood Bell Center during the above three time periods
(P. 655-656.)
IV. DISCUSSION AND CONCLUSIONS
..
B. Whether the school district failed to provide the student a free
appropriate public education during the 2010-2011 school year by failing
to refer her for special education prior to December 2010 or failing to find
her eligible until September 2011.
Each school district must have a plan to identify, locate, and evaluate at public expense
students residing within the district who may be eligible for special education services. 34 C.F.R.
300.111(a)(i) & (ii); 34 C.F.R. 300.111(c)(1) & (2); MUSER IV.2.A. A school districts
child find process must include obtaining data on each child, through multiple measures, direct
assessment, and parent information, regarding the child's academic and functional performance,
gross and fine motor skills, receptive and expressive language skills, vision, hearing and
cognitive skills. 34 C.F.R. 300.532; MUSER IV.2.C.
A students Team must assess a student in all areas of suspected disability. 20 U.S.C.
1414(b)(3); MUSER V.2.C.4. Final identification of a student is to occur after evaluation of
the student and an IEP Team meeting. 20 U.S.C. 1414(b)(4)(A); MUSER IV.2.A. A school
district must develop and implement a service plan for each IDEA-eligible student that describes
the specific special education and related services that the school district will provide. MUSER
IX.3.A.1.d.
..
Analysis and Holdings:
The familys claim that the school department violated the students right to FAPE may
extend back only until two years prior to the date of their due process hearing request of
599

September 6, 2012. Beginning in xx, the student was noted to be falling behind her peers in
acquisition of literacy skills and to have problems of distractibility and focus. (Testimony of
students mother.) Her academic deficits led to a PLP that included math and reading
instruction. (S. 415-419.) In xx grade, her classroom teacher sounded the alarm early in the year
that the student was well behind her peers in the development of literacy skills. (Testimony of
students mother.) In Ms. Goochs February 2009 academic evaluation, the student was noted to
be acquiring reading skills at slow and laborious rates, slower than her peers and at below
grade level expectations. (S. 377.) The student was noted to be unable to make more than
minimal academic progress. (S. 379.)
In the students March 2009 psychoeducational assessment, Ms. Millwood did not
evaluate the student for ADHD, but observed that the student exhibited distractibility and
impulsivity during the testing and opined that those characteristics could impact her test scores as
well as her general learning. (S. 368.) Ms. Millwood recommended several accommodations to
address the students difficulty with focus and attention. (S. 368.) Dr. Kaufman testified that he
believed that untreated attentional problems were the primary source of the students academic
difficulties. (Testimony of Kaufman.) He also opined that her attentional issues were evident at
the time of the Millwood evaluation. (Testimony of Kaufman.)
The student was observed to have stronger auditory processing skills than visual
processing skills in both Ms. Goochs evaluation and Mr. Metcalfs May 2009 occupational
therapy evaluation, which found visual processing to be a significant issue for the student in
all aspects. (S. 249 & S. 377.) In Ms. Frasers November 2009 classroom observation, the
classroom teacher noted that the student was off task at times attending to what other students
were doing, in addition to acquiring reading skills at a slow rate. (P. 88.) Ms. Rusinek testified

600

that in xx grade the student was very easily distracted. (Testimony of Rusinek.) Ms. McGuire
testified that she believed the student made limited progress in the Wilson Reading System in xx
and xx grade due to inattentiveness and anxiety. (Testimony of McGuire.)
As such, and as Dr. Kaufman noted, there was significant evidence of executive
functioning and attention deficits that merited independent analysis that would have led to a
determination that the student qualified for special education as of September 2010.99
As of September 2010, therefore, the school department was in violation of its obligation
to locate, identify, and provide a FAPE to the student as a student with a disability. By not
assessing the student in all areas of suspected disability, which adversely affected the
determination of her IDEA eligibility, the school department committed a procedural denial of
FAPE. 20 U.S.C. 1414(b)(3); MUSER V.2.c.4; see also W.H. v. Clovis United Sch. Dist., 52
IDELR 258 at *16-*17 (E.D. Cal. 2009) (holding that a districts failure to assess in all areas of
suspected disability was a procedural denial of FAPE). Although the court in W.H. characterized
the failure to conduct appropriate assessments and evaluate all areas of disability to be a possible
procedural violation, when a school districts failure to identify an eligible student, it can become
a substantive violation of the IDEA. See RSU No. 51 v. Doe, 2012 U.S. Dist. LEXIS 185359
(D. Me. 2012) (upholding a hearing officer decision that a school districts failure to identify a
student was a substantive IDEA violation), affd, 113 LRP 4299 (D. Me. 2013). Even if the
school districts violation here is characterized as exclusively procedural, it impeded the
students right to FAPE, significantly impeded the parents opportunity to participate in the
decision-making process regarding the provision of FAPE, and caused a deprivation of
educational benefits. 20 U.S.C. 1415(f)(3)(E)(ii); MUSER XVI.15.A.2.
99

The parents also raise arguments that the Maine regulatory requirement that a processing
disorder be found conflicts with federal law, which need not be addressed here.
601

When the parents requested a meeting with school staff after the student obtained
alarmingly low standardized test scores in October 2010, Ms. Rusinek indicated even though the
student was not progressing as she had hoped, the school had done all the testing it could do
(Testimony of students mother); instead of rereferring the student for a determination of special
education eligibility, Ms. Rusinek referred the parents to their pediatrician, suggesting that
medication might help the student focus. (Testimony of students mother.) Even then, the
formal referral form was not filled out until December 17, 2010. (S. 309.) At the IEP Team
meeting of the same date, Ms. Ouimet repeated the assertion that the school department could
not have reevaluated the student any sooner because they had done so only one-and-a-half to two
years earlier. (S. 311.) This was inconsistent with special education regulations allowing
reevaluation annually if the parents and school district agree. 20 U.S.C. 1414(a)(2)(B);
MUSER V.I.B.2. By the time the school district offered an evaluation in December 2010, the
family had already provided Dr. Hunter with a down payment towards a private evaluation.
Once the third referral process for the student formally began in December 2010, the
delays in the students identification were caused by both by the delay in the completion of Dr.
Hunters report and by the miscommunication between the parents and school staff about its use
by the Team.100 Once Dr. Hunters report was completed in May 2011, until September 2011,
the communication between the school department and the family as to what information was
required for the Team to make a determination was understood differently by both parties.

100

Although the parties disagree over the appropriate diagnosis for the student, specifically
whether she has a non-verbal leaning disability, the dispute need not be addressed here since by
the time the student was identified, the Team agreed that she had the disabilities of Attention
Deficit Hyperactivity Disorder and processing disorders related to working memory, attention,
and adjustment, qualifying her for special education as a student with Specific Learning
Disabilities. (S. 126 & S. 199-202.)
602

Although the school department maintains that it was clear as to what the parents needed to
provide, the parents expressed confusion, both through testimony at hearing and in
contemporaneous documentation, as to why the student continued to remain unidentified. The
parents repeatedly reminded school staff that the Hunter report was available upon request and
provided Ms. Jones and Ms. McGuire the opportunity to review the report in full, while asking
them to share the portions of the report with the Team that it would need.
The discussion at the June 2011 meeting in particular is perplexing; Ms. Ouimet opened
the meeting by stating that the Team would review the Learning Disability Evaluation Report
and what information would be required to fill it out. (P. 715.) The meeting notes indicate that
the family did not want the student identified at that time but instead wished to obtain additional
evaluations, while the familys response to the written notice from the meeting was confusion as
to why the student had not yet been identified and at hearing, the students mother testified that
the parents felt overwhelmed and confused by the school Department handing them the Learning
Disability Evaluation Report. (S.264; testimony of students mother.) Ms. McGuire testified
that the language at the parents request essentially meant that the Learning Disability
Evaluation Report because the parents had not provided sufficient information from Dr. Hunters
report. (Testimony of McGuire.) Ms. McGuire testified that the student was not identified at
that meeting because the family had not turned over the full Hunter report for the students file.
(Testimony of McGuire.)
Ultimately, it was the school departments responsibility to identify and provide services
for the student as a student with qualifying disabilities. The school department did not meets its
responsibility because it did not facilitate the Teams ability to make a determination by not
furnishing the information that Ms. Jones and Ms. McGuire had obtained and not explaining

603

clearly to the family what specific information from Dr. Hunters report needed to be provided to
the whole Team, while also assuring them that the report provided sufficient information to
identify the student as eligible for special education.
Although the school district contends that because throughout xx grade the student
received services under a PLP, no harm was done, the fact that an eligible student did not have
an IEP is in itself a denial of FAPE. A PLP is markedly different from an IEP. There are myriad
legal requirements surrounding the makeup of the Team creating an IEP, the terms and
provisions of an IEP, and a familys right to legal documents and notice regarding IEP Team
decisions. Of particular note is the fact that the parents were not initially informed that the
student was receiving PLP services and the lack of formal parent involvement in the
development of the PLP. Moreover, the students PLP services were delivered in a group setting
and her PLP did not contain, among other IEP requirements, annual goals, assessment measures,
supportive services, or accommodations. (S. 415-419.)101
Finally, although the school district maintains that the student made progress during xx
grade, and as such no remedy is required, the student was still markedly delayed in her
acquisition of literacy skills, which is contrasted with the rapid progress the student made while
in Lindamood Bell programming. In Mr. Rusineks administration of the GORT-4 in June 2010
, the student scored in the very poor range in her reading rate, in the below average range for
accuracy, in the poor range for fluency, and in the average range for comprehension. (S. 261 &
S. 273.) Although the student had increased her sight word recognition over the last few months
of the year, testing by Ms. Papageorge in July 2011 showed that the student scored below
101

Although the school departments objective to meet all students needs, regardless of special
education eligibility, is laudable, the decision making and services provided to the student in the
PLP were not a valid substitute for a determination of special education eligibility and
development of an IEP.
604

average on sight word recognition and word attack skills, recognizing sight words two years
below her grade level placement. (S. 252.) Ms. Papageorge found the student was at Step 2 of
the Wilson Reading System after two years of instruction in it, even though it was a twelve-step
program ideally completed in three years of intensive instruction. (S. 252.) At the Lindamood
Bell Center, also in July 2011, the student scored significantly below grade level on a series of
assessments. (S. 256-258.)
As such, I hold that the school district failed to provide the student a FAPE during the
2010-2011 school year by failing to refer her for special education prior to December 2010 and
failing to find her eligible until September 2011.
C. Whether the school district failed to provide the student with a free
appropriate public education from September 2011 to August 2012.
A student who has been identified as eligible for special education is entitled to a FAPE
provided by the school district in which he resides. 20 U.S.C. 1412(a)(1)(A); 20 M.R.S.A.
7201. A FAPE includes special education as well as related services. 20 U.S.C. 1401(9);
MUSER II.14.
An IEP is reviewed first for consideration of whether it was developed in accordance
with procedural requirements and, second, whether the IEP and placement were reasonably
calculated to provide the student with some educational benefits. Board of Educ. v. Rowley, 458
U.S. 176, 206-07 (1982) (analyzing predecessor statute to IDEA). An IEP must be designed to
provide a student with personalized instruction with sufficient support services to permit the
child to benefit educationally from that instruction. Id. at 203. In addition, an IEP must include
the students present levels of performance, measurable annual goals, methods by which progress
towards those goals will be measured, an explanation of to what extent the student will
participate with non-disabled students, and the special education and supportive services
605

necessary to help the student advance toward his goals, make progress in the general education
curriculum, participate in nonacademic activities, and be educated with other children with
disabilities as well as non-disabled peers. 20 U.S.C. 1414(d)(1 )(A); MUSER IX.3.A.
As the First Circuit Court of Appeals has explained, 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. Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1st Cir. 1993).
Whether an IEP is reasonably calculated to enable a child to receive educational benefits depends
on the students individual potential. Rowley, 458 U.S. at 203. A students program must be
geared toward the achievement of effective results demonstrable improvement in the
educational and personal skills identified as special needs. Town of Burlington v. Dept of
Educ., 736 F.2d 773, 788 (1st Cir. 1984), affd, 471 U.S. 359 (1985); see also Sanford Sch. Dept,
47 IDELR 176 (Me. SEA 2006) (stating that progress must be made in a students specific area
of need). Because there is no bright-line rule on the amount of benefit required of an
appropriate IEP, each situation requires a student-by-student analysis that carefully considers
the students individual abilities. Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 248 (3d Cir.
1999) (holding that the meaningful benefit standard requires significant learning (quoting
Polk v. Cent. Susquehanna Intermediate Unit 16, 853 F.2d 171, 182 (3d Cir. 1988)).
Further, the IDEA requires that students be educated with non-disabled peers to the
maximum extent appropriate. 20 U.S.C. 1412(a)(5)(A); 34 C.F.R. 300.114(a)(2); MUSER
X.2.B. As such, a public school may remove a child with disabilities from the regular
educational environment only when the nature or severity of the disability of a child is such that

606

education in regular classes with the use of supplementary aids and services cannot be achieved
satisfactorily. 20 U.S.C. 1412(a)(5)(A); MUSER X.2.B. The educational benefit and least
restrictive environment requirements operate in tandem to create a continuum of educational
possibilities. Roland M. v. Concord Sch. Comm., 910 F.2d 983, 993 (1st Cir. 1990). As such,
schools must make a continuum of placement options available. 34 C.F.R. 300.115; MUSER
X.2.B.
..

Analysis and Holdings:

The students IEP for the period of September 2011 to August 2012 contained the
essential elements of an IEP and identified a set of services and accommodations that was
reasonably calculated to provide her with meaningful benefit. It defined three annual goals in
spelling, reading fluency, and reading level. (S. 129-130.) It called for 60 minutes for day of
specially designed instruction and a set of auxiliary aids and accommodations. (S. 132.)
The implementation of the students plan, in terms of its impact on her ability to access
her learning, however, merits further analysis. The student did not begin accessing the services
until early December of 2011 because of her attendance at the Lindamood Bell Center during the
fall. (Testimony of students mother.) She accessed only regular education for several weeks,
during which time she showed no emotional distress. (Testimony of students mother.) Once
she began to access Learning Center services with Ms. Rusinek on December 2, 2011, however,
her distress quickly became apparent. On December 8, the parents began to report the students
distress to school staff. (P. 377.) This resulted in many conversations and meetings between
school staff and the parents, including an emergency IEP Team meeting on January 10, 2012.

607

(P. 478, S. 112, S. 113, P. 391, P. 405 & P. 478.) At that meeting, the parents began to request a
special educator other than Ms. Rusinek, a request that Ms. McGuire rejected. (S. 109.) The
parents also requested presentation of services in a room with no other students present due to
distractibility, which Ms. McGuire also rejected, despite Dr. Kaufmans opinion that the
students ADHD was the primary factor impacting her difficulty acquiring literacy skills. (S.
109.) School staff attempted to probe the students distress as school with the student, although
this further exacerbated the parents frustration when the probing upset the student. (Testimony
of students mother.)
The parents consulted with their pediatrician, who felt that the school needed to redefine
its provision of services to the student to alleviate her distress. (P. 446.) In a visit note of May
15, 2012, which was shared with school staff at the May 2012 Team meeting, Dr. Hunter
encouraged flexibility in the provision of services to the student given the students lagging
skill regarding mental flexibility and shifting of perspective. (P. 446.) Dr. Hunter also
provided insight into the students desire to mask her distress at school in order to please others
and be identified as a good student. (P. 446-447.) When the family requested that services be
provided after or before school, the school department responded variously that staff members
were not contracted to work before or after school and that special education services were
always delivered during the school day (S. 169); that data at the time did not indicate the need
for an extended school day (S. 85 & S. 86); that extended school day services were not
appropriate for the student because of attentional and anxiety issues (testimony of McGuire); and
it was therapeutically important that the student take part in school day services to begin to
understand what services she would need in order to overcome her disabilities (testimony of
Kaufman). At hearing, Ms. McGuire testified that these decisions were not IEP Team decisions

608

but were exclusively hers as the Director of Instructional Services and that, with regard to
staffing, she considered Ms. Rusinek to be the best reading teacher in the district. (Testimony of
McGuire.)
Permeating throughout the school districts response to the students increasing distress
and eventual crisis, however, are indications that school staff members were not entirely
convinced by the parents recitation of the students expressions of distress at home. At the
Team meeting on May 18, 2012, Ms. Rusinek stated that because the parents kept saying she is
having these meltdowns and everything else, she had asked the building principal to confront
the student as to the cause of her distress. (P. 715 (recording of May 18, 2012 IEP Team
meeting).) Multiple staff members testified at hearing that they found it implausible that a
student could exhibit such distress at home about a school-related issue while not displaying
signs of distress at school. (Testimony of McGuire; testimony of Ouimet; testimony of
Kaufman.)
It was not until the parents met with the school department superintendent that the school
department agreed to make any changes to the students program. Unfortunately, after one day
receiving services from a new teacher, the students despair reached an all-time low, at which
point Dr. Hunter suggested they remove the student from the Learning Center programming,
since she had consistently identified it as the significant stressor for her, and the parents became
unable to fathom returning her to a situation that caused her so much distress.102 (P. 460;
testimony of students father.) Prior to this escalation in the students discomfort with her pull-

102

At that time, Dr. Hunter reiterated the recommendation that the student attend weekly
therapy. It is not clear whether accessing such services, particularly during the school day as the
school department proposed, would have slowed the students emotional deterioration over that
period or would have exacerbated it since it involved more separation from her regular education
classroom.
609

out services, it was noted in various evaluations that the student was social, enjoyed being with
her peers, tried to mask her learning difficulties, and was uncomfortable receiving support in the
regular education classroom. (S. 6, S. 169, S. 286 & S. 310.)
Courts have routinely held that parents do not have the right under the IDEA to select
which providers will deliver instruction to special education students. See, e.g., Slama v. Indep.
Sch. Dist. No. 2580, 259 F. Supp.2d 880, 884-85 (D. Minn. 2003). On the other hand, courts
have indicated that an IEP Team should consider issues of location and schedule relevant to the
implementation of an IEP. In Carrie I. v. Department of Education, 869 F. Supp.2d 1225 (D.
Haw. 2012), the court explained that the location in which services are delivered is an element of
placement, appropriate for Team deliberation for consideration of any potential harmful effects.
Id. (citing R.B. v. Mastery Charter Sch., 762 F. Supp.2d 745, 762-63 (E.D. Pa. 2010).)
Furthermore, in Sanford School Committee v. Mr. and Mrs. L., 34 IDELR 262 (D. Me. 2001),
the court held that when a students placement was based on administrative convenience rather
than the childs needs, it violated the intent of an IEP to serve the child in the least restrictive
environment and as such an IEP Team must give meaningful consideration to whether proposed
IEP and placement suit the unique needs of the child. Id.
In this case, the students extreme distress over her placement warranted consideration of
a change by the students IEP Team, particularly in light of the fact that her evaluator, Dr.
Hunter, explained that the students desire to please others might be masking her discomfort and
advocated for creative thinking in designing her service delivery. She also later advised that it
was appropriate to maintain flexibility to help the student maintain a position association with
school, remain motivated to address her specialized learning needs, and reduce anxiety that
interfered with learning. Dr. Kaufmans opinion that it was not clinically sound to accommodate

610

the students desire not to be removed from the regular education setting would hold more merit
if he had established a clinical relationship with the student or had the school department staff
fully accepted the parents recitation of the students downward emotional trajectory from
December 2011 to May 2012.
The school district cites cases in which courts held that school departments were not
required to address out-of-school behaviors that did not impact the students educational
performance. In R.C. and E.P. v. York School Department, 2008 U.S. Dist. LEXIS 75538, for
example, a students difficult out-of-school behaviors did not lead to special education eligibility
when they could be classified exclusively as social problems at home. As the court noted in
that case, [e]ducational benefit is indeed the touchstone in determining the extent of
governmental obligations under the IDEA. Id. (quoting Gonzalez v. Puerto Rico Dept of
Educ., 254 F.3d 350, 352-53 (1st Cir. 2001)). In Gonzalez, however, the court went on to note
that 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. Gonzalez, 254 F.3d at 352. The court continued, [t]hus,
typically an IEP in cases whether 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. Id. at 352-53.
In the present case, the entirely of the students out-of-school distress was directly related
to her in school programming, contrary to the facts in A.S. v. Madison Metropolitan County
Sch. Dist., 477 F. Supp.2d 969 (W.D. Wis. 2007), where when a family failed to show that
behavioral problems at home were educationally related, the school was not required to address

611

them. When a disability impacts a student in school, including in areas of non-academic

educational performance, it is relevant to the evaluation of her eligibility for special education.
Mr. and Mrs. I. v. MSAD No. 55, 2005 U.S. Dist. LEXIS 11401, at *53-*54 (D. Me. 2005). In
Parent v. Gorham School Department, Case No. 07.020H, a hearing officer held that when a
students behaviors at home derived from his experiences at school and significantly contributed
to his inability to access his potential, the students IEP did not adequately meet his needs
because it did not address those behaviors. Id. The fact that the ultimately extreme result of the
students distress in the present case was an inability to take part in her programming confirms
that her distress, even though only released at home, had a direct impact on her education. As
Dr. Hunter reported, although the student tried to do as expected of her at school, her emotional
and physical distress at home, which was tied directly to her school day, warranted consideration
by the students IEP Team.103
The students disabilities and resulting mental health needs required changes to her
program that the school department refused to entertain. By refusing to entertain any changes to
the students program that might mitigate that deterioration, at least with regard to location and
timing, the school department failed to provide the student with a FAPE from the point at which
the parents began to inform the school department of the students distress in early December
2010 until the end of that school year.104

103

Although the school department challenges the ability of the parents testimony alone to meet
the familys burden of proof about the students mental health, the parents testimony was
sufficient to establish the factual bases for the students distress and the cause thereof, and Dr.
Hunters expert testimony buttress the parents testimony.
104
The parents do not put forth any argument that the ESY services offered for the student in the
summer of 2012 were inadequate; therefore, the analysis of this claim ends with the conclusion
of the 2011-2012 school year.
612

Finally, the school department points to data that Ms. Rusinek compiled to indicate that
the student continued to make meaningful gains during the time she was in services in xx grade.
Of note, Ms. Rusinek reported shortly after the services began that the student was exhibiting
regressive behaviors that interfered with her learning. (Testimony of Rusinek.) Further, as the
parents note, Ms. Rusineks data was not means-tested. Moreover, the students mid-February
2012 testing at the Lindamood Bell Center showed that the student had fallen behind in the Test
of Word Opposites and the Symbol Imagery Test, a critical component of literacy skills
acquisition. Moreover, the students emotional deterioration, which culminated in her inability
to even take part in the services, underscore that her program was not adequately addressing her
needs. Finally, the students subsequent ability to successfully engage in after school direct
instruction proved that she was capable of an extended day.
As such, I hold that the school district failed to provide the student with a free appropriate
public education from December 2011 to June 2012.
D. Whether the IEP offered to the student for the 2012-2013 school year was
reasonably calculated to provide her with a free appropriate public education.
The legal standards regarding provision of FAPE are outlined in the prior section of this
decision.
...
Analysis and Holdings:
The students xx grade IEP was never accessed by the family. The parents hesitancy
given the students negative reaction to her xx grade program was understandable. The parents
testified that they did not access the xx grade Learning Center services because the school
department was not listening to their suggestions, they were not sure how well trained the xx
grade instructor would be, and they felt they could not afford for the student to fail again.
613

(Testimony of students father.) Although the parents argue that even attempting this model
would have set the student up for failure, Dr. Hunter suggested several gradual measures to
acclimate the student to the new program that would have aided an attempt to access the new
program. The fact that the parties appear never to have reached any discussion of potential
gradual introductory measures to test the students ability to access the services reflects both on
the parents decision to reject the services and the complete breakdown in communication
between the parties. Nevertheless, without any attempt to determine the students reaction to a
new teacher and a new setting, it is impossible to determine that the IEP devised for the student
would not have provided her with a FAPE had it been implemented.
As such, I hold that the IEP offered to the student for the 2012-2013 school year was
reasonably calculated to provide her with a free appropriate public education.
E. If the family is entitled to a remedy, what remedy is appropriate?
When a student is deprived of a FAPE, he is entitled to such relief as the court deems is
appropriate. 20 U.S.C. 1415(i)(2)(B)(iii). Compensatory educational services are one form of
remedy, the nature and extent of which vary depending on the facts of each particular situation.
Pihl v. Massachusetts Dept of Educ., 9 F.3d 184 (1st Cir. 1993). Although an IEP need only
provide some benefit, compensatory awards must do more they must compensate. Reid v.
District of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005). An award of compensatory education
should aim to place disabled children in the same position they would have occupied but for the
school districts violations of IDEA. Reid, 401 F.3d at 518; see also MSAD #22, 43 IDELR
268 (Me. SEA 2005) (stating that the typical compensatory education award is an award of
services in an amount sufficient to make up for the past educational deficiencies).
Compensatory education need not be an hour-for-hour replacement of lost time or opportunity;

614

instead, a compensatory education award should be designed to ensure that the student is
appropriately educated within the meaning of the IDEA. Parents of Student W. v. Puyallup
Sch. Dist. #3, 31 F.3d 1489, 1497 (9th Cir. 1994); see also Reid, 401 F.3d at 523 (rejecting a
cookie-cutter approach that runs counter to both the broad discretion afforded by IDEAs
remedial provision and the substantive FAPE standard that provision is meant to enforce). An
award of compensatory education should be fact-specific, depending on the childs needs. Reid,
401 F.3d 516 at 524; Pihl, 9 F.3d at 188 n.8.
An award of compensatory education may reimburse a family for services obtained
during the period of deprivation of FAPE, Draper v. Atlanta Independent School System,518
F.3d 1275, 1285-86 (11th Cir. 2006), and also may require services at a future time to
compensate for what was lost, Pihl v. Mass. Dept. of Educ., 9 F.3d 184, 189 (1st Cir. 1993).
Further, a compensatory education award is very dependent on the particular facts and
circumstances of the case. Millay v. Surry Sch. Dept., 2011 WL 1122132, *9 (D. Me. March
24, 2011), affd by 2011 WL 1989923 (D. Me. May 23, 2011).
Parents are entitled to reimbursement for a private school placement only if the public
placement violated the IDEA and the private school placement was proper under the IDEA. 20
U.S.C. 1414(a)(10)(C); see also Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 13-15
(1993). Tuition reimbursement may be awarded as compensatory education. 20 U.S.C.
1412(a)(10)(C)(ii); 34 C.F.R. 300.148(c); see also RSU No. 51, 2012 U.S. Dist. LEXIS 185359
at *106.
...
Analysis and Holdings:
The parents are entitled to a remedy for the school departments failure to identify and

615

find the student eligible for special education as of September 2010 until her identification in
September 2011 and for the school departments failure to provide the student with a FAPE from
December 2011 to June 2012.
An appropriate remedy for the denial of FAPE during the students xx grade year is
reimbursement for all costs associated with the Lindamood Bell Center initial evaluation in July
2011 and subsequent 234 hour program from September to November 2011. This is an
appropriate remedy for the students deprivation of FAPE during xx grade because the program
significantly advanced the students literacy skills and moved her closer to the position she
would have occupied had she received special education services during xx grade.105 The
programming directly addressed the students processing order deficits and was successful in
boosting not only her concrete skills but also her confidence and decreasing her anxiety.
With regard to the denial of FAPE for the portion of the students xx grade year during
which she was in attendance, the family is entitled to reimbursement for the costs associated with
the students reevaluation at the Lindamood Bell Center in February 2012 (this is limited to tolls
and mileage because within in the parents recitation of costs there is no fee associated with this
evaluation). The family is also reimbursed for the cost of the additional 60 hours of Lindamood
Bell Center programming the student undertook in August 2012. These remedies are directly
tailored to the students academic deficits and learning style and resulted in significant gains.
If, at any point during the pendency of the students IEP, the family decides to access the
specially designed instruction and or social work services identified in the students IEP, the
students IEP Team should meet to determine options for gradual introduction of the services to

105

The delay in the identification process caused by the length of time it took Dr. Hunter to
complete her report beyond the 45 days that the school department would have been allocated
has been taken into account in fashioning this remedy.
616

the student as well as options for alternative locations and timing of the delivery of such services.
As such, I hold that the school department must reimburse the family $29,946.33,
representative of the following amounts:
$645 to Lindamood Bell Center for July 2011 evaluation
$19,492.20 to Lindamood Bell Center for program fee for 10 weeks in
September to November 2011
$5,643 to Lindamood Bell Center for program fee for 2 weeks in August
2012
$273 in tolls traveling to and from Lindamood Bell Center during the
above three time periods
$3,893.13 in mileage, incurred at IRS reimbursable rate, incurred traveling
to and from Lindamood Bell Center during the above three time
periods106
(P. 655-656.)
V. ORDER
1. Yarmouth School Department violated special education law by failing to provide the
student a free appropriate public education during the 2010-2011 school year by failing to
refer her for special education services prior to December 2010 and failing to find her
eligible until September 2011.
2. Yarmouth School Department violated special education law by failing to provide the
student with a free appropriate public education from December 2011 to June 2012.
3. Yarmouth School Department offered the student an IEP for the 2012-2013 school year
that was reasonably calculated to provide her with a free appropriate public education.
4. Yarmouth School Department is ordered to reimburse the family $29,946.33 for the costs
of services that served as compensatory education, outlined above.
5. If, at any point during the 2012-2013 school year, the family decides to access the
specially designed instruction and or social work services identified in the students IEP,
the students IEP Team should meet to determine options for graduation introduction of
the services to the student as well as options for alternative locations and timing of the
delivery of such services.

106

The parents seek reimbursement for food and lodging costs as well, but because testimony
indicated that the parents stayed with friends and did not incur lodging costs, these costs are not
awarded; they are also not awarded the costs for a pool fee they incurred while in Massachusetts.
617

___________________________________
Rebekah J. Smith, Esq.
Hearing Officer

618

Dear Colleague Letter

THE ASSISTANT SECRETARY
January 25, 2013
Dear Colleague:
Extracurricular athleticswhich include club, intramural, or interscholastic (e.g., freshman,
junior varsity, varsity) athletics at all education levelsare an important component of an overall
education program. The United States Government Accountability Office (GAO) published a
report that underscored that access to, and participation in, extracurricular athletic opportunities
provide important health and social benefits to all students, particularly those with disabilities.1
These benefits can include socialization, improved teamwork and leadership skills, and fitness.
Unfortunately, the GAO found that students with disabilities are not being afforded an equal
opportunity to participate in extracurricular athletics in public elementary and secondary
schools.2
To ensure that students with disabilities consistently have opportunities to participate in
extracurricular athletics equal to those of other students, the GAO recommended that the United
States Department of Education (Department) clarify and communicate schools responsibilities
under Section 504 of the Rehabilitation Act of 1973 (Section 504) regarding the provision of
extracurricular athletics. The Departments Office for Civil Rights (OCR) is responsible for
enforcing Section 504, which is a Federal law designed to protect the rights of individuals with
disabilities in programs and activities (including traditional public schools and charter schools)
that receive Federal financial assistance.3
In response to the GAOs recommendation, this guidance provides an overview of the
obligations of public elementary and secondary schools under Section 504 and the Departments
Section 504 regulations, cautions against making decisions based on presumptions and
stereotypes, details the specific Section 504 regulations that require students with disabilities to
have an equal opportunity for participation in nonacademic and extracurricular services and
activities, and discusses the provision of separate or different athletic opportunities. The specific
details of the illustrative examples offered in this guidance are focused on the elementary and
secondary school context. Nonetheless, students with disabilities at the postsecondary level must
also be provided an equal opportunity to participate in athletics, including intercollegiate, club,
and intramural athletics.4

619

I. Overview of Section 504 Requirements

To better understand the obligations of school districts with respect to extracurricular athletics
for students with disabilities, it is helpful to review Section 504s requirements.
Under the Departments Section 504 regulations, a school district is required to provide a
qualified student with a disability an opportunity to benefit from the school districts program
equal to that of students without disabilities. For purposes of Section 504, a person with a
disability is one who (1) has a physical or mental impairment that substantially limits one or
more major life activities; (2) has a record of such an impairment; or (3) is regarded as having
such an impairment.5 With respect to public elementary and secondary educational services,
qualified means a person (i) of an age during which persons without disabilities are provided
such services, (ii) of any age during which it is mandatory under state law to provide such
services to persons with disabilities, or (iii) to whom a state is required to provide a free
appropriate public education under the Individuals with Disabilities Education Act (IDEA).6
Of course, simply because a student is a qualified student with a disability does not mean that
the student must be allowed to participate in any selective or competitive program offered by a
school district; school districts may require a level of skill or ability of a student in order for that
student to participate in a selective or competitive program or activity, so long as the selection or
competition criteria are not discriminatory.
Among other things, the Departments Section 504 regulations prohibit school districts from:

denying a qualified student with a disability the opportunity to participate in or benefit

from an aid, benefit, or service;
affording a qualified student with a disability an opportunity to participate in or benefit
from an aid, benefit, or service that is not equal to that afforded others;
providing a qualified student with a disability with an aid, benefit, or service that is not as
effective as that provided to others and does not afford that student with an equal
opportunity to obtain the same result, gain the same benefit, or reach the same level of
achievement in the most integrated setting appropriate to the students needs;
providing different or separate aid, benefits, or services to students with disabilities or to
any class of students with disabilities unless such action is necessary to provide a
qualified student with a disability with aid, benefits, or services that are as effective as
those provided to others; and
otherwise limiting a qualified individual with a disability in the enjoyment of any right,
privilege, advantage, or opportunity enjoyed by others receiving an aid, benefit, or
service.7

The Departments Section 504 regulations also require school districts to provide a free
appropriate public education (Section 504 FAPE) to each qualified person with a disability who
is in the school districts jurisdiction, regardless of the nature or severity of the persons
disability.8

620

A school district must also adopt grievance procedures that incorporate appropriate due process
standards and that provide for prompt and equitable resolution of complaints alleging violations
of the Section 504 regulations.9
A school districts legal obligation to comply with Section 504 and the Departments regulations
supersedes any rule of any association, organization, club, or league that would render a student
ineligible to participate, or limit the eligibility of a student to participate, in any aid, benefit, or
service on the basis of disability.10 Indeed, it would violate a school districts obligations under
Section 504 to provide significant assistance to any association, organization, club, league, or
other third party that discriminates on the basis of disability in providing any aid, benefit, or
service to the school districts students.11 To avoid violating their Section 504 obligations in the
context of extracurricular athletics, school districts should work with their athletic associations to
ensure that students with disabilities are not denied an equal opportunity to participate in
interscholastic athletics.12
II. Do Not Act On Generalizations and Stereotypes
A school district may not operate its program or activity on the basis of generalizations,
assumptions, prejudices, or stereotypes about disability generally, or specific disabilities in
particular. A school district also may not rely on generalizations about what students with a type
of disability are capable ofone student with a certain type of disability may not be able to play
a certain type of sport, but another student with the same disability may be able to play that sport.
Example 1: A student has a learning disability and is a person with a disability as defined by
Section 504. While in middle school, this student enjoyed participating in her schools lacrosse
club. As she enters the ninth grade in high school, she tries out and is selected as a member of the
high schools lacrosse team. The coach is aware of this students learning disability and believes
that all students with the students particular learning disability would be unable to play
successfully under the time constraints and pressures of an actual game. Based on this
assumption, the coach decides never to play this student during games. In his opinion,
participating fully in all the team practice sessions is good enough.
Analysis: OCR would find that the coachs decision violates Section 504. The coach denied this
student an equal opportunity to participate on the team by relying solely on characteristics he
believed to be associated with her disability. A school district, including its athletic staff, must
not operate on generalizations or assumptions about disability or how a particular disability
limits any particular student. Rather, the coach should have permitted this student an equal
opportunity to participate in this athletic activity, which includes the opportunity to participate in
the games as well as the practices. The student, of course, does not have a right to participate in
the games; but the coachs decision on whether the student gets to participate in games must be
based on the same criteria the coach uses for all other players (such as performance reflected
during practice sessions).

621

III. Ensure Equal Opportunity for Participation

A school district that offers extracurricular athletics must do so in such manner as is necessary to
afford qualified students with disabilities an equal opportunity for participation.13 This means
making reasonable modifications and providing those aids and services that are necessary to
ensure an equal opportunity to participate, unless the school district can show that doing so
would be a fundamental alteration to its program.14 Of course, a school district may adopt bona
fide safety standards needed to implement its extracurricular athletic program or activity. A
school district, however, must consider whether safe participation by any particular student with
a disability can be assured through reasonable modifications or the provision of aids and
services.15
Schools may require a level of skill or ability for participation in a competitive program or
activity; equal opportunity does not mean, for example, that every student with a disability is
guaranteed a spot on an athletic team for which other students must try out. A school district
must, however, afford qualified students with disabilities an equal opportunity for participation
in extracurricular athletics in an integrated manner to the maximum extent appropriate to the
needs of the student.16 This means that a school district must make reasonable modifications to
its policies, practices, or procedures whenever such modifications are necessary to ensure equal
opportunity, unless the school district can demonstrate that the requested modification would
constitute a fundamental alteration of the nature of the extracurricular athletic activity.
In considering whether a reasonable modification is legally required, the school district must first
engage in an individualized inquiry to determine whether the modification is necessary. If the
modification is necessary, the school district must allow it unless doing so would result in a
fundamental alteration of the nature of the extracurricular athletic activity. A modification might
constitute a fundamental alteration if it alters such an essential aspect of the activity or game that
it would be unacceptable even if it affected all competitors equally (such as adding an extra base
in baseball). Alternatively, a change that has only a peripheral impact on the activity or game
itself might nevertheless give a particular player with a disability an unfair advantage over others
and, for that reason, fundamentally alter the character of the competition. Even if a specific
modification would constitute a fundamental alteration, the school district would still be required
to determine if other modifications might be available that would permit the students
participation.
To comply with its obligations under Section 504, a school district must also provide a qualified
student with a disability with needed aids and services, if the failure to do so would deny that
student an equal opportunity for participation in extracurricular activities in an integrated manner
to the maximum extent appropriate to the needs of the student.17
Example 2: A high school student has a disability as defined by Section 504 due to a hearing
impairment. The student is interested in running track for the school team. He is especially
interested in the sprinting events such as the 100 and 200 meter dashes. At the tryouts for the
track team, the start of each race was signaled by the coachs assistant using a visual cue, and the
students speed was fast enough to qualify him for the team in those events. After the student
makes the team, the coach also signals the start of races during practice with the same visual cue.
622

Before the first scheduled meet, the student asks the district that a visual cue be used at the meet
simultaneously when the starter pistol sounds to alert him to the start of the race. Two
neighboring districts use a visual cue as an alternative start in their track and field meets. Those
districts report that their runners easily adjusted to the visual cue and did not complain about
being distracted by the use of the visual cue.
After conducting an individualized inquiry and determining that the modification is necessary for
the student to compete at meets, the district nevertheless refuses the students request because the
district is concerned that the use of a visual cue may distract other runners and trigger complaints
once the track season begins. The coach tells the student that although he may practice with the
team, he will not be allowed to participate in meets.
Analysis: OCR would find that the school districts decision violates Section 504.
While a school district is entitled to set its requirements as to skill, ability, and other benchmarks,
it must provide a reasonable modification if necessary, unless doing so would fundamentally
alter the nature of the activity. Here, the student met the benchmark requirements as to speed and
skill in the 100 and 200 meter dashes to make the team. Once the school district determined that
the requested modification was necessary, the school district was then obligated to provide the
visual cue unless it determined that providing it would constitute a fundamental alteration of the
activity.
In this example, OCR would find that the evidence demonstrated that the use of a visual cue does
not alter an essential aspect of the activity or give this student an unfair advantage over others.
The school district should have permitted the use of a visual cue and allowed the student to
compete.
Example 3: A high school student was born with only one hand and is a student with a disability
as defined by Section 504. This student would like to participate on the schools swim team. The
requirements for joining the swim team include having a certain level of swimming ability and
being able to compete at meets. The student has the required swimming ability and wishes to
compete. She asks the school district to waive the two-hand touch finish it requires of all
swimmers in swim meets, and to permit her to finish with a one-hand touch. The school
district refuses the request because it determines that permitting the student to finish with a onehand touch would give the student an unfair advantage over the other swimmers.
Analysis: A school district must conduct an individualized assessment to determine whether the
requested modification is necessary for the students participation, and must determine whether
permitting it would fundamentally alter the nature of the activity. Here, modification of the twohand touch is necessary for the student to participate. In determining whether making the
necessary modification eliminating the two-hand touch rule would fundamentally alter the
nature of the swim competition, the school district must evaluate whether the requested
modification alters an essential aspect of the activity or would give this student an unfair
advantage over other swimmers.

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OCR would find a one-hand touch does not alter an essential aspect of the activity. If, however,
the evidence demonstrated that the school districts judgment was correct that she would gain an
unfair advantage over others who are judged on the touching of both hands, then a complete
waiver of the rule would constitute a fundamental alteration and not be required.
In such circumstances, the school district would still be required to determine if other
modifications were available that would permit her participation. In this situation, for example,
the school district might determine that it would not constitute an unfair advantage over other
swimmers to judge the student to have finished when she touched the wall with one hand and her
other arm was simultaneously stretched forward. If so, the school district should have permitted
this modification of this rule and allowed the student to compete.
Example 4: An elementary school student with diabetes is determined not eligible for services
under the IDEA. Under the school districts Section 504 procedures, however, he is determined
to have a disability. In order to participate in the regular classroom setting, the student is
provided services under Section 504 that include assistance with glucose testing and insulin
administration from trained school personnel. Later in the year, this student wants to join the
school-sponsored gymnastics club that meets after school. The only eligibility requirement is that
all gymnastics club members must attend that school. When the parent asks the school to provide
the glucose testing and insulin administration that the student needs to participate in the
gymnastics club, school personnel agree that it is necessary but respond that they are not required
to provide him with such assistance because gymnastics club is an extracurricular activity.
Analysis: OCR would find that the schools decision violates Section 504. The student needs
assistance in glucose testing and insulin administration in order to participate in activities during
and after school. To meet the requirements of Section 504 FAPE, the school district must
provide this needed assistance during the school day.
In addition, the school district must provide this assistance after school under Section 504 so that
the student can participate in the gymnastics club, unless doing so would be a fundamental
alteration of the districts education program. Because the school district always has a legal
obligation under IDEA to provide aids or services in its education program to enable any IDEAeligible students to participate in extracurricular activities,18 providing these aids or services
after school to a student with a disability not eligible under the IDEA would rarely, if ever, be a
fundamental alteration of its education program. This remains true even if there are currently no
IDEA-eligible students in the district who need these aids or services.
In this example, OCR would find that the school district must provide glucose testing and insulin
administration for this student during the gymnastics club in order to comply with its Section 504
obligations. The student needs this assistance in order to participate in the gymnastics club, and
because this assistance is available under the IDEA for extracurricular activities, providing this
assistance to this student would not constitute a fundamental alteration of the districts education
program.19

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IV. Offering Separate or Different Athletic Opportunities

As stated above, in providing or arranging for the provision of extracurricular athletics, a school
district must ensure that a student with a disability participates with students without disabilities
to the maximum extent appropriate to the needs of that student with a disability.20 The provision
of unnecessarily separate or different services is discriminatory.21 OCR thus encourages school
districts to work with their community and athletic associations to develop broad opportunities to
include students with disabilities in all extracurricular athletic activities.
Students with disabilities who cannot participate in the school districts existing extracurricular
athletics program even with reasonable modifications or aids and services should still have
an equal opportunity to receive the benefits of extracurricular athletics. When the interests and
abilities of some students with disabilities cannot be as fully and effectively met by the school
districts existing extracurricular athletic program, the school district should create additional
opportunities for those students with disabilities.
In those circumstances, a school district should offer students with disabilities opportunities for
athletic activities that are separate or different from those offered to students without disabilities.
These athletic opportunities provided by school districts should be supported equally, as with a
school districts other athletic activities. School districts must be flexible as they develop
programs that consider the unmet interests of students with disabilities. For example, an everincreasing number of school districts across the country are creating disability-specific teams for
sports such as wheelchair tennis or wheelchair basketball. When the number of students with
disabilities at an individual school is insufficient to field a team, school districts can also: (1)
develop district-wide or regional teams for students with disabilities as opposed to a schoolbased team in order to provide competitive experiences; (2) mix male and female students with
disabilities on teams together; or (3) offer allied or unified sports teams on which students
with disabilities participate with students without disabilities.22 OCR urges school districts, in
coordination with students, families, community and advocacy organizations, athletic
associations, and other interested parties, to support these and other creative ways to expand such
opportunities for students with disabilities.23
V. Conclusion
OCR is committed to working with schools, students, families, community and advocacy
organizations, athletic associations, and other interested parties to ensure that students with
disabilities are provided an equal opportunity to participate in extracurricular athletics.
Individuals who believe they have been subjected to discrimination may also file a complaint
with OCR or in court.24
For the OCR regional office serving your area, please visit:
http://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm, or call OCRs Customer Service
Team at 1-800-421-3481 (TDD 1-877-521-2172).
Please do not hesitate to contact us if we can provide assistance in your efforts to address this
issue or if you have other civil rights concerns. I look forward to continuing our work together to
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ensure that students with disabilities receive an equal opportunity to participate in a school
districts education program.
Sincerely,
/s/
Seth M. Galanter
Acting Assistant Secretary for
Civil Rights

1 United States Government Accountability Office, Students with Disabilities: More Information and Guidance Could Improve Opportunities in
Physical Education and Athletics, No. GAO-10-519, at 1, 31 (June 2010), available at http://www.gao.gov/assets/310/305770.pdf.
2 Id. at 20-22, 25-26.
3 29 U.S.C. 794(a), (b). Pursuant to a delegation by the Attorney General of the United States, OCR shares in the enforcement of Title II of the
Americans with Disabilities Act of 1990, which is a Federal law prohibiting disability discrimination in the services, programs, and activities of
state and local governments (including public school districts), regardless of whether they receive Federal financial assistance. 42 U.S.C.
12132. Violations of Section 504 that result from school districts failure to meet the obligations identified in this letter also constitute violations
of Title II. 42 U.S.C. 12201(a). To the extent that Title II provides greater protection than Section 504, covered entities must comply with Title
IIs substantive requirements. OCR also enforces Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of
sex in education programs that receive Federal financial assistance. 20 U.S.C. 1681. For more information about the application of Title IX in
athletics, see OCRs Reading Room, Documents Title IX, at http://www.ed.gov/ocr/publications.html#TitleIX-Docs.
4 34 C.F.R. 104.4, 104.47. The U.S. Department of Education has determined that this document is a significant guidance document under
the Office of Management and Budget's Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432 (Jan. 25, 2007). OCR issues this
and other policy guidance to provide recipients with information to assist them in meeting their obligations, and to provide members of the public
with information about their rights under the civil rights laws and implementing regulations that we enforce. OCRs legal authority is based on
those laws and regulations. This letter does not add requirements to applicable law, but provides information and examples to inform recipients
about how OCR evaluates whether covered entities are complying with their legal obligations. If you are interested in commenting on this
guidance, please send an e-mail with your comments to OCR@ed.gov, or write to us at the following address: Office for Civil Rights, U.S.
Department of Education, 400 Maryland Avenue, SW, Washington, DC 20202.
5 29 U.S.C. 705(9)(B), (20)(B) (as amended by the Americans with Disabilities Act Amendments Act of 2008); 34 C.F.R. 104.3(j). For
additional information on the broadened meaning of disability after the effective date of the 2008 Amendments Act, see OCRs 2012 Dear
Colleague Letter and Frequently Asked Questions document, available at http://www.ed.gov/ocr/letters/colleague-201109.html, and
http://www.ed.gov/ocr/docs/dcl-504faq-201109.html.
6 34 C.F.R. 104.3(l)(2).
7 34 C.F.R. 104.4(b)(1)(i)-(iv), (vii), (2), (3). Among the many specific applications of these general requirements, Section 504 prohibits
harassment on the basis of disability, including harassment that occurs during extracurricular athletic activities. OCR issued a Dear Colleague
letter dated October 26, 2010, that addresses harassment, including disability harassment, in educational settings. See Dear Colleague Letter:
Harassment and Bullying, available at http://www.ed.gov/ocr/letters/colleague-201010.html. For additional information on disability-based
harassment, see OCRs Dear Colleague Letter: Prohibited Disability Harassment (July 25, 2000), available at
http://www.ed.gov/ocr/docs/disabharassltr.html.
8 34 C.F.R. 104.33(a). Section 504 FAPE may include services a student requires in order to ensure that he or she has an equal opportunity to
participate in extracurricular and other nonacademic activities. One way to meet the Section 504 FAPE obligation is to implement an
individualized education program (IEP) developed in accordance with the IDEA. 34 C.F.R. 104.33(b)(2). Because the IDEA is not enforced by
OCR, this document is not intended as an explanation of IDEA requirements or implementing regulations, which include the requirement that a
students IEP address the special education, related services, supplementary aids and services, program modifications, and supports for school
personnel to be provided to enable the student to, among other things, participate in extracurricular and other nonacademic activities. 34 C.F.R.
300.320(a)(4)(ii). In general, OCR would view a school districts failure to address participation or requests for participation in extracurricular
athletics for a qualified student with a disability with an IEP in a manner consistent with IDEA requirements as a failure to ensure Section 504
FAPE and an equal opportunity for participation.
9 34 C.F.R. 104.7(b).
10 34 C.F.R. 104.10(a), 34 C.F.R. 104.4(b)(1).
11 34 C.F.R. 104.4(b)(1)(v); 34 C.F.R. pt. 104, App. A 104.4 at 367 (2012).
12 OCR would find that an interscholastic athletic association is subject to Section 504 if it receives Federal financial assistance or its members
are recipients of Federal financial assistance who have ceded to the association controlling authority over portions of their athletic program. Cf.
Cmtys. for Equity v. Mich. High Sch. Athletic Assn, Inc., 80 F.Supp.2d 729, 733-35 (W.D. Mich. 2000) (at urging of the United States, court
finding that an entity with controlling authority over a program or activity receiving Federal financial assistance is subject to Title IXs antidiscrimination rule). Where an athletic association is covered by Section 504, OCR would find that the school districts obligations set out in this
letter would apply with equal force to the covered athletic association.
13 34 C.F.R. 104.37(a), (c).
14 See Alexander v. Choate, 469 U.S. 287, 300-01 (1985) (Section 504 may require reasonable modifications to a program or benefit to assure
meaningful access to qualified persons with disabilities); Southeastern Cmty. Coll. v. Davis, 442 U.S. 397 (1979) (Section 504 does not prohibit a

626

college from excluding a person with a serious hearing impairment as not qualified where accommodating the impairment would require a
fundamental alteration in the colleges program).
15 34 C.F.R. 104.4(b)(1).
16 34 C.F.R. 104.37(a), (c); 34 C.F.R. 104.34(b); 34 C.F.R. 104.4(b)(1)(ii).
17 34 C.F.R. 104.37(a), (c); 34 C.F.R. 104.34(b); 34 C.F.R. 104.4(b)(1)(ii). Although a school district may also raise the defense that a
needed modification or aid or service would constitute an undue burden to its program, based on OCRs experience, such a defense would rarely,
if ever, prevail in the context of extracurricular athletics; for this reason, to the extent the examples in this letter touch on applicable defenses, the
discussion focuses on the fundamental alteration defense. To be clear, however, neither the fundamental alteration nor undue burden defense is
available in the context of a school districts obligation to provide a FAPE under the IDEA or Section 504. See 20 U.S.C. 1414(d)(1); 34 C.F.R.
104.33. Moreover, whenever the IDEA would impose a duty to provide aids and services needed for participation in extracurricular athletics (as
discussed in footnote 8 above), OCR would likewise rarely, if ever, find that providing the same needed aids and services for extracurricular
athletics constitutes a fundamental alteration under Section 504 for students not eligible under the IDEA.
18 20 U.S.C. 1412(a)(1), 1414(d)(1)(A)(i)(IV)(bb); 34 CFR 300.320(a)(4)(ii), 300.107, 300.117; see also footnotes 8 & 17, above.
19 34 C.F.R. 104.37.
20 34 C.F.R. 104.34(b).
21 34 C.F.R. pt. 104, App. A 104.4 at 367 (2012); 34 C.F.R. pt. 104, App. A 104.37 at 376 (2012).
22 The Departments Office of Special Education and Rehabilitative Services issued a guidance document that, among other things, includes
suggestions on ways to increase opportunities for children with disabilities to participate in physical education and athletic activities. That
guidance, Creating Equal Opportunities for Children and Youth with Disabilities to Participate in Physical Education and Extracurricular
Athletics, dated August 2011, is available at http://www2.ed.gov/policy/speced/guid/idea/equal-pe.pdf.
23 It bears repeating, however, that a qualified student with a disability who would be able to participate in the school districts existing
extracurricular athletics program, with or without reasonable modifications or the provision of aids and services that would not fundamentally
alter the program, may neither be denied that opportunity nor be limited to opportunities to participate in athletic activities that are separate or
different. 34 C.F.R. 104.37(c)(2).
24 34 C.F.R. 104.61 (incorporating 34 C.F.R. 100.7(b)); Barnes v. Gorman, 536 U.S. 181, 185 (2002).

627

UNITED STATES DEPARTMENT OF EDUCATION

OFFICE FOR CIVIL RIGHTS
October 26, 2010
Dear Colleague:
In recent years, many state departments of education and local school districts have taken steps
to reduce bullying in schools. The U.S. Department of Education (Department) fully supports
these efforts. Bullying fosters a climate of fear and disrespect that can seriously impair the
physical and psychological health of its victims and create conditions that negatively affect
learning, thereby undermining the ability of students to achieve their full potential. The
movement to adopt anti-bullying policies reflects schools appreciation of their important
responsibility to maintain a safe learning environment for all students. I am writing to remind
you, however, that some student misconduct that falls under a schools anti-bullying policy also
may trigger responsibilities under one or more of the federal antidiscrimination laws enforced by
the Departments Office for Civil Rights (OCR). As discussed in more detail below, by limiting
its response to a specific application of its anti-bullying disciplinary policy, a school may fail to
properly consider whether the student misconduct also results in discriminatory harassment.
The statutes that OCR enforces include Title VI of the Civil Rights Act of 1964 107 (Title VI),
which prohibits discrimination on the basis of race, color, or national origin; Title IX of the
Education Amendments of 1972 108 (Title IX), which prohibits discrimination on the basis of
sex; Section 504 of the Rehabilitation Act of 1973 109 (Section 504); and Title II of the
Americans with Disabilities Act of 1990 110 (Title II). Section 504 and Title II prohibit
discrimination on the basis of disability. 111 School districts may violate these civil rights
statutes and the Departments implementing regulations when peer harassment based on race,
color, national origin, sex, or disability is sufficiently serious that it creates a hostile
environment and such harassment is encouraged, tolerated, not adequately addressed, or
ignored by school employees. 112 School personnel who understand their legal obligations to
address harassment under these laws are in the best position to prevent it from occurring and to
respond appropriately when it does. Although this letter focuses on the elementary and
secondary school context, the legal principles also apply to postsecondary institutions covered
by the laws and regulations enforced by OCR.

107

42 U.S.C. 2000d et seq.

20 U.S.C. 1681 et seq.
109
29 U.S.C. 794.
110
42 U.S.C. 12131 et seq.
111
OCR also enforces the Age Discrimination Act of 1975, 42 U.S.C. 6101 et seq., and the Boy Scouts of America Equal Access Act, 20 U.S.C.
7905. This letter does not specifically address those statutes.
112
The Departments regulations implementing these statutes are in 34 C.F.R. parts 100, 104, and 106. Under these federal civil rights laws and
regulations, students are protected from harassment by school employees, other students, and third parties. This guidance focuses on peer
harassment, and articulates the legal standards that apply in administrative enforcement and in court cases where plaintiffs are seeking injunctive
relief.
108

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Some school anti-bullying policies already may list classes or traits on which bases bullying or
harassment is specifically prohibited. Indeed, many schools have adopted anti-bullying policies
that go beyond prohibiting bullying on the basis of traits expressly protected by the federal civil
rights laws enforced by OCRrace, color, national origin, sex, and disabilityto include such
bases as sexual orientation and religion. While this letter concerns your legal obligations under
the laws enforced by OCR, other federal, state, and local laws impose additional obligations on
schools. 113 And, of course, even when bullying or harassment is not a civil rights violation,
schools should still seek to prevent it in order to protect students from the physical and
emotional harms that it may cause.
Harassing conduct may take many forms, including verbal acts and name-calling; graphic and
written statements, which may include use of cell phones or the Internet; or other conduct that
may be physically threatening, harmful, or humiliating. Harassment does not have to include
intent to harm, be directed at a specific target, or involve repeated incidents. Harassment creates
a hostile environment when the conduct is sufficiently severe, pervasive, or persistent so as to
interfere with or limit a students ability to participate in or benefit from the services, activities,
or opportunities offered by a school. When such harassment is based on race, color, national
origin, sex, or disability, it violates the civil rights laws that OCR enforces. 114
A school is responsible for addressing harassment incidents about which it knows or reasonably
should have known. 115 In some situations, harassment may be in plain sight, widespread, or
well-known to students and staff, such as harassment occurring in hallways, during academic or
physical education classes, during extracurricular activities, at recess, on a school bus, or through
graffiti in public areas. In these cases, the obvious signs of the harassment are sufficient to put
the school on notice. In other situations, the school may become aware of misconduct, triggering
an investigation that could lead to the discovery of additional incidents that, taken together, may
constitute a hostile environment. In all cases, schools should have well-publicized policies
prohibiting harassment and procedures for reporting and resolving complaints that will alert the
school to incidents of harassment. 116
When responding to harassment, a school must take immediate and appropriate action to
investigate or otherwise determine what occurred. The specific steps in a schools investigation
will vary depending upon the nature of the allegations, the source of the complaint, the age of
113

For instance, the U.S. Department of Justice (DOJ) has jurisdiction over Title IV of the Civil Rights Act of 1964, 42 U.S.C. 2000c (Title IV),
which prohibits discrimination on the basis of race, color, sex, religion, or national origin by public elementary and secondary schools and public
institutions of higher learning. State laws also provide additional civil rights protections, so districts should review these statutes to determine what
protections they afford (e.g., some state laws specifically prohibit discrimination on the basis of sexual orientation).
114
Some conduct alleged to be harassment may implicate the First Amendment rights to free speech or expression. For more information on the
First Amendments application to harassment, see the discussions in OCRs Dear Colleague Letter: First Amendment (July 28, 2003), available at
http://www.ed.gov/about/offices/list/ocr/firstamend.html, and OCRs Revised Sexual Harassment Guidance: Harassment of Students by School
Employees, Other Students, or Third Parties (Jan. 19, 2001) (Sexual Harassment Guidance), available at
http://www.ed.gov/about/offices/list/ocr/docs/shguide.html.
115
A school has notice of harassment if a responsible employee knew, or in the exercise of reasonable care should have known, about the
harassment. For a discussion of what a responsible employee is, see OCRs Sexual Harassment Guidance.
116
Districts must adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee sex and
disability discrimination complaints, and must notify students, parents, employees, applicants, and other interested parties that the district does not
discriminate on the basis of sex or disability. See 28 C.F.R. 35.106; 28 C.F.R. 35.107(b); 34 C.F.R. 104.7(b); 34 C.F.R. 104.8; 34 C.F.R.
106.8(b); 34 C.F.R. 106.9.

629

the student or students involved, the size and administrative structure of the school, and other
factors. In all cases, however, the inquiry should be prompt, thorough, and impartial.
If an investigation reveals that discriminatory harassment has occurred, a school must take
prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile
environment and its effects, and prevent the harassment from recurring. These duties are a
schools responsibility even if the misconduct also is covered by an anti-bullying policy, and
regardless of whether a student has complained, asked the school to take action, or identified
the harassment as a form of discrimination.
Appropriate steps to end harassment may include separating the accused harasser and the target,
providing counseling for the target and/or harasser, or taking disciplinary action against the
harasser. These steps should not penalize the student who was harassed. For example, any
separation of the target from an alleged harasser should be designed to minimize the burden on
the targets educational program (e.g., not requiring the target to change his or her class
schedule).
In addition, depending on the extent of the harassment, the school may need to provide training or
other interventions not only for the perpetrators, but also for the larger school community, to
ensure that all students, their families, and school staff can recognize harassment if it recurs and
know how to respond. A school also may be required to provide additional services to the
student who was harassed in order to address the effects of the harassment, particularly if the
school initially delays in responding or responds inappropriately or inadequately to information
about harassment. An effective response also may need to include the issuance of new policies
against harassment and new procedures by which students, parents, and employees may report
allegations of harassment (or wide dissemination of existing policies and procedures), as well as
wide distribution of the contact information for the districts Title IX and Section 504/Title II
coordinators. 117
Finally, a school should take steps to stop further harassment and prevent any retaliation against
the person who made the complaint (or was the subject of the harassment) or against those who
provided information as witnesses. At a minimum, the schools responsibilities include making
sure that the harassed students and their families know how to report any subsequent problems,
conducting follow-up inquiries to see if there have been any new incidents or any instances of
retaliation, and responding promptly and appropriately to address continuing or new problems.
When responding to incidents of misconduct, schools should keep in mind the following:

The label used to describe an incident (e.g., bullying, hazing, teasing) does not determine
how a school is obligated to respond. Rather, the nature of the conduct itself must be
assessed for civil rights implications. So, for example, if the abusive behavior is on the

117

Districts must designate persons responsible for coordinating compliance with Title IX, Section 504, and Title II, including the investigation of
any complaints of sexual, gender-based, or disability harassment. See 28 C.F.R. 35.107(a); 34 C.F.R. 104.7(a); 34 C.F.R. 106.8(a).

630

basis of race, color, national origin, sex, or disability, and creates a hostile environment,
a school is obligated to respond in accordance with the applicable federal civil rights
statutes and regulations enforced by OCR.

When the behavior implicates the civil rights laws, school administrators should look
beyond simply disciplining the perpetrators. While disciplining the perpetrators is likely
a necessary step, it often is insufficient. A schools responsibility is to eliminate the
hostile environment created by the harassment, address its effects, and take steps to
ensure that harassment does not recur. Put differently, the unique effects of
discriminatory harassment may demand a different response than would other types of
bullying.

Below, I provide hypothetical examples of how a schools failure to recognize student

misconduct as discriminatory harassment violates students civil rights. 118 In each of the
examples, the school was on notice of the harassment because either the school or a responsible
employee knew or should have known of misconduct that constituted harassment. The examples
describe how the school should have responded in each circumstance.
Title VI: Race, Color, or National Origin Harassment
Some students anonymously inserted offensive notes into African-American students
lockers and notebooks, used racial slurs, and threatened African-American students
who tried to sit near them in the cafeteria. Some African-American students told
school officials that they did not feel safe at school. The school investigated and
responded to individual instances of misconduct by assigning detention to the few
student perpetrators it could identify. However, racial tensions in the school continued
to escalate to the point that several fights broke out between the schools racial groups.
In this example, school officials failed to acknowledge the pattern of harassment as
indicative of a racially hostile environment in violation of Title VI. Misconduct need
not be directed at a particular student to constitute discriminatory harassment and foster
a racially hostile environment. Here, the harassing conduct included overtly racist
behavior (e.g., racial slurs) and also targeted students on the basis of their race (e.g.,
notes directed at African-American students). The nature of the harassment, the number
of incidents, and the students safety concerns demonstrate that there was a racially
hostile environment that interfered with the students ability to participate in the
schools education programs and activities.
Had the school recognized that a racially hostile environment had been created, it would
have realized that it needed to do more than just discipline the few individuals whom it
could identify as having been involved. By failing to acknowledge the racially hostile
environment, the school failed to meet its obligation to implement a more systemic
response to address the unique effect that the misconduct had on the school climate. A
more effective response would have included, in addition to punishing the perpetrators,
118

Each of these hypothetical examples contains elements taken from actual cases.

631

such steps as reaffirming the schools policy against discrimination (including racial
harassment), publicizing the means to report allegations of racial harassment, training
faculty on constructive responses to racial conflict, hosting class discussions about
racial harassment and sensitivity to students of other races, and conducting outreach to
involve parents and students in an effort to identify problems and improve the school
climate. Finally, had school officials responded appropriately and aggressively to the
racial harassment when they first became aware of it, the school might have prevented
the escalation of violence that occurred. 119

Over the course of a school year, school employees at a junior high school received
reports of several incidents of anti-Semitic conduct at the school. Anti-Semitic graffiti,
including swastikas, was scrawled on the stalls of the school bathroom. When
custodians discovered the graffiti and reported it to school administrators, the
administrators ordered the graffiti removed but took no further action. At the same
school, a teacher caught two ninth-graders trying to force two seventh-graders to give
them money. The ninth-graders told the seventh-graders, You Jews have all of the
money, give us some. When school administrators investigated the incident, they
determined that the seventh-graders were not actually Jewish. The school suspended
the perpetrators for a week because of the serious nature of their misconduct. After that
incident, younger Jewish students started avoiding the school library and computer lab
because they were located in the corridor housing the lockers of the ninth-graders. At
the same school, a group of eighth-grade students repeatedly called a Jewish student
Drew the dirty Jew. The responsible eighth-graders were reprimanded for teasing the
Jewish student.

The school administrators failed to recognize that anti-Semitic harassment can trigger
responsibilities under Title VI. While Title VI does not cover discrimination based solely on
religion, 120 groups that face discrimination on the basis of actual or perceived shared ancestry or
ethnic characteristics may not be denied protection under Title VI on the ground that they also
share a common faith. These principles apply not just to Jewish students, but also to students
from any discrete religious group that shares, or is perceived to share, ancestry or ethnic
characteristics (e.g., Muslims or Sikhs). Thus, harassment against students who are members of
any religious group triggers a schools Title VI responsibilities when the harassment is based on
the groups actual or perceived shared ancestry or ethnic characteristics, rather than solely on its
members religious practices. A school also has responsibilities under Title VI when its students
are harassed based on their actual or perceived citizenship or residency in a country whose
residents share a dominant religion or a distinct religious identity. 121

119

More information about the applicable legal standards and OCRs approach to investigating allegations of harassment on the basis of race, color,
or national origin is included in Racial Incidents and Harassment Against Students at Educational Institutions: Investigative Guidance, 59 Fed.
Reg. 11,448 (Mar. 10, 1994), available at http://www.ed.gov/about/offices/list/ocr/docs/race394.html.
120
As noted in footnote seven, DOJ has the authority to remedy discrimination based solely on religion under Title IV.
121
More information about the applicable legal standards and OCRs approach to investigating complaints of discrimination against members of
religious groups is included in OCRs Dear Colleague Letter: Title VI and Title IX Religious Discrimination in Schools and Colleges (Sept. 13,
2004), available at http://www2.ed.gov/about/offices/list/ocr/religious-rights2004.html.

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In this example, school administrators should have recognized that the harassment was based on
the students actual or perceived shared ancestry or ethnic identity as Jews (rather than on the
students religious practices). The school was not relieved of its responsibilities under Title VI
because the targets of one of the incidents were not actually Jewish. The harassment was still
based on the perceived ancestry or ethnic characteristics of the targeted students. Furthermore,
the harassment negatively affected the ability and willingness of Jewish students to participate
fully in the schools education programs and activities (e.g., by causing some Jewish students to
avoid the library and computer lab). Therefore, although the discipline that the school imposed
on the perpetrators was an important part of the schools response, discipline alone was likely
insufficient to remedy a hostile environment. Similarly, removing the graffiti, while a necessary
and important step, did not fully satisfy the schools responsibilities. As discussed above,
misconduct that is not directed at a particular student, like the graffiti in the bathroom, can still
constitute discriminatory harassment and foster a hostile environment. Finally, the fact that
school officials considered one of the incidents teasing is irrelevant for determining whether it
contributed to a hostile environment.
Because the school failed to recognize that the incidents created a hostile environment, it
addressed each only in isolation, and therefore failed to take prompt and effective steps
reasonably calculated to end the harassment and prevent its recurrence. In addition to disciplining
the perpetrators, remedial steps could have included counseling the perpetrators about the hurtful
effect of their conduct, publicly labeling the incidents as anti-Semitic, reaffirming the schools
policy against discrimination, and publicizing the means by which students may report
harassment. Providing teachers with training to recognize and address anti-Semitic incidents also
would have increased the effectiveness of the schools response. The school could also have
created an age- appropriate program to educate its students about the history and dangers of anti-
Semitism, and could have conducted outreach to involve parents and community groups in
preventing future anti-Semitic harassment.
Title IX: Sexual Harassment

Shortly after enrolling at a new high school, a female student had a brief romance
with another student. After the couple broke up, other male and female students
began routinely calling the new student sexually charged names, spreading rumors
about her sexual behavior, and sending her threatening text messages and e-mails.
One of the students teachers and an athletic coach witnessed the name calling and
heard the rumors, but identified it as hazing that new students often experience.
They also noticed the new students anxiety and declining class participation. The
school attempted to resolve the situation by requiring the student to work the problem
out directly with her harassers.

Sexual harassment is unwelcome conduct of a sexual nature, which can include unwelcome
sexual advances, requests for sexual favors, or other verbal, nonverbal, or physical conduct of a
sexual nature. Thus, sexual harassment prohibited by Title IX can include conduct such as
touching of a sexual nature; making sexual comments, jokes, or gestures; writing graffiti or
displaying or distributing sexually explicit drawings, pictures, or written materials; calling
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students sexually charged names; spreading sexual rumors; rating students on sexual activity or
performance; or circulating, showing, or creating e- mails or Web sites of a sexual nature.
In this example, the school employees failed to recognize that the hazing constituted sexual
harassment. The school did not comply with its Title IX obligations when it failed to investigate
or remedy the sexual harassment. The conduct was clearly unwelcome, sexual (e.g., sexual
rumors and name calling), and sufficiently serious that it limited the students ability to
participate in and benefit from the schools education program (e.g., anxiety and declining class
participation).
The school should have trained its employees on the type of misconduct that constitutes sexual
harassment. The school also should have made clear to its employees that they could not require
the student to confront her harassers. Schools may use informal mechanisms for addressing
harassment, but only if the parties agree to do so on a voluntary basis. Had the school addressed
the harassment consistent with Title IX, the school would have, for example, conducted a
thorough investigation and taken interim measures to separate the student from the accused
harassers. An effective response also might have included training students and employees on the
schools policies related to harassment, instituting new procedures by which employees should
report allegations of harassment, and more widely distributing the contact information for the
districts Title IX coordinator. The school also might have offered the targeted student tutoring,
other academic assistance, or counseling as necessary to remedy the effects of the harassment. 122
Title IX: Gender-Based Harassment

Over the course of a school year, a gay high school student was called names
(including anti-gay slurs and sexual comments) both to his face and on social
networking sites, physically assaulted, threatened, and ridiculed because he did not
conform to stereotypical notions of how teenage boys are expected to act and appear
(e.g., effeminate mannerisms, nontraditional choice of extracurricular activities,
apparel, and personal grooming choices). As a result, the student dropped out of the
drama club to avoid further harassment. Based on the students self-identification as
gay and the homophobic nature of some of the harassment, the school did not
recognize that the misconduct included discrimination covered by Title IX. The
school responded to complaints from the student by reprimanding the perpetrators
consistent with its anti- bullying policy. The reprimands of the identified perpetrators
stopped the harassment by those individuals. It did not, however, stop others from
undertaking similar harassment of the student.

As noted in the example, the school failed to recognize the pattern of misconduct as a form of
sex discrimination under Title IX. Title IX prohibits harassment of both male and female
students regardless of the sex of the harasseri.e., even if the harasser and target are members
122

More information about the applicable legal standards and OCRs approach to investigating allegations of sexual harassment is included in
OCRs Sexual Harassment Guidance, available at http://www.ed.gov/about/offices/list/ocr/docs/shguide.html.

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of the same sex. It also prohibits gender-based harassment, which may include acts of verbal,
nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping.
Thus, it can be sex discrimination if students are harassed either for exhibiting what is perceived
as a stereotypical characteristic for their sex, or for failing to conform to stereotypical notions of
masculinity and femininity. Title IX also prohibits sexual harassment and gender-based
harassment of all students, regardless of the actual or perceived sexual orientation or gender
identity of the harasser or target.
Although Title IX does not prohibit discrimination based solely on sexual orientation, Title IX
does protect all students, including lesbian, gay, bisexual, and transgender (LGBT) students,
from sex discrimination. When students are subjected to harassment on the basis of their LGBT
status, they may also, as this example illustrates, be subjected to forms of sex discrimination
prohibited under Title IX. The fact that the harassment includes anti-LGBT comments or is
partly based on the targets actual or perceived sexual orientation does not relieve a school of its
obligation under Title IX to investigate and remedy overlapping sexual harassment or
gender-based harassment. In this example, the harassing conduct was based in part on the
students failure to act as some of his peers believed a boy should act. The harassment created a
hostile environment that limited the students ability to participate in the schools education
program (e.g., access to the drama club). Finally, even though the student did not identify the
harassment as sex discrimination, the school should have recognized that the student had been
subjected to gender-based harassment covered by Title IX.
In this example, the school had an obligation to take immediate and effective action to eliminate
the hostile environment. By responding to individual incidents of misconduct on an ad hoc
basis only, the school failed to confront and prevent a hostile environment from continuing.
Had the school recognized the conduct as a form of sex discrimination, it could have employed
the full range of sanctions (including progressive discipline) and remedies designed to eliminate
the hostile environment. For example, this approach would have included a more
comprehensive response to the situation that involved notice to the students teachers so that
they could ensure the student was not subjected to any further harassment, more aggressive
monitoring by staff of the places where harassment occurred, increased training on the scope of
the schools harassment and discrimination policies, notice to the target and harassers of
available counseling services and resources, and educating the entire school community on civil
rights and expectations of tolerance, specifically as they apply to gender stereotypes. The
school also should have taken steps to clearly communicate the message that the school does not
tolerate harassment and will be responsive to any information about such conduct. 123
Section 504 and Title II: Disability Harassment

Several classmates repeatedly called a student with a learning disability stupid,

idiot, and retard while in school and on the school bus. On one occasion, these
students tackled him, hit him with a school binder, and threw his personal items into

123

Guidance on gender-based harassment is also included in OCRs Sexual Harassment Guidance, available at
http://www.ed.gov/about/offices/list/ocr/docs/shguide.html.

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the garbage. The student complained to his teachers and guidance counselor that he
was continually being taunted and teased. School officials offered him counseling
services and a psychiatric evaluation, but did not discipline the offending students. As
a result, the harassment continued. The student, who had been performing well
academically, became angry, frustrated, and depressed, and often refused to go to
school to avoid the harassment.
In this example, the school failed to recognize the misconduct as disability harassment under
Section 504 and Title II. The harassing conduct included behavior based on the students
disability, and limited the students ability to benefit fully from the schools education program
(e.g., absenteeism). In failing to investigate and remedy the misconduct, the school did not
comply with its obligations under Section 504 and Title II.
Counseling may be a helpful component of a remedy for harassment. In this example, however,
since the school failed to recognize the behavior as disability harassment, the school did not
adopt a comprehensive approach to eliminating the hostile environment. Such steps should have
at least included disciplinary action against the harassers, consultation with the districts Section
504/Title II coordinator to ensure a comprehensive and effective response, special training for
staff on recognizing and effectively responding to harassment of students with disabilities, and
monitoring to ensure that the harassment did not resume. 124
I encourage you to reevaluate the policies and practices your school uses to address bullying 125
and harassment to ensure that they comply with the mandates of the federal civil rights laws.
For your convenience, the following is a list of online resources that further discuss the
obligations of districts to respond to harassment prohibited under the federal antidiscrimination
laws enforced by OCR:

Sexual Harassment: Its Not Academic (Revised 2008):

http://www.ed.gov/about/offices/list/ocr/docs/ocrshpam.html

Dear Colleague Letter: Sexual Harassment Issues (2006):

http://www2.ed.gov/about/offices/list/ocr/letters/sexhar-2006.html

Dear Colleague Letter: Religious Discrimination (2004):

http://www2.ed.gov/about/offices/list/ocr/religious-rights2004.html

Dear Colleague Letter: First Amendment (2003):

124

More information about the applicable legal standards and OCRs approach to investigating allegations of disability harassment is included in
OCRs Dear Colleague Letter: Prohibited Disability Harassment (July 25, 2000), available at
http://www2.ed.gov/about/offices/list/ocr/docs/disabharassltr.html.
125
For resources on preventing and addressing bullying, please visit http://www.bullyinginfo.org, a Web site established by a federal
Interagency Working Group on Youth Programs. For information on the Departments bullying prevention resources, please visit the Office of
Safe and Drug-Free Schools Web site at http://www.ed.gov/offices/OESE/SDFS. For information on regional Equity Assistance Centers that
assist schools in developing and implementing policies and practices to address issues regarding race, sex, or national origin discrimination,
please visit http://www.ed.gov/programs/equitycenters.

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http://www.ed.gov/about/offices/list/ocr/firstamend.html

Sexual Harassment Guidance (Revised 2001):

http://www.ed.gov/about/offices/list/ocr/docs/shguide.html

Dear Colleague Letter: Prohibited Disability Harassment (2000):

http://www.ed.gov/about/offices/list/ocr/docs/disabharassltr.html

Racial Incidents and Harassment Against Students (1994):

http://www.ed.gov/about/offices/list/ocr/docs/race394.html

Please also note that OCR has added new data items to be collected through its Civil Rights Data
Collection (CRDC), which surveys school districts in a variety of areas related to civil rights in
education. The CRDC now requires districts to collect and report information on allegations of
harassment, policies regarding harassment, and discipline imposed for harassment. In 2009-10,
the CRDC covered nearly 7,000 school districts, including all districts with more than 3,000
students. For more information about the CRDC data items, please visit
http://www2.ed.gov/about/offices/list/ocr/whatsnew.html.
OCR is committed to working with schools, students, students families, community and
advocacy organizations, and other interested parties to ensure that students are not subjected to
harassment. Please do not hesitate to contact OCR if we can provide assistance in your efforts to
address harassment or if you have other civil rights concerns.
For the OCR regional office serving your state, please visit:
http://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm, or call OCRs Customer Service Team
at 1-800-421-3481.
I look forward to continuing our work together to ensure equal access to education, and to
promote safe and respectful school climates for Americas students.
Sincerely,
/s/
Russlynn
Ali
Assistant Secretary for Civil Rights

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HOW TO READ A LEGAL DECISION

Once you have gotten beyond Why would I want to read a legal decision?, these suggestions
might help as you dive into a real live case.
In the margin of the casebook or on a separate sheet distill and summarize the essential facts.
State these very simply. Then write down the issue the narrow legal question the court is
answering. Next state the holding the courts very specific answer to the issue. And finally,
briefly outline the courts rationale in arriving at the holding. If there are concurring or
dissenting opinions, make note of the rationale of each. Do not get sidetracked by the court's
procedural disposition at the end of a case when it affirms, remands, denies, or whatever.
Your goal is to understand the facts, issue, holding, and rationale.
Often courts will address subjects not strictly required of them to decide the issue at hand.
Statements in a legal decision on such matters are called dicta dictum in the singular. This
word is in the Glossary. A very careful reader will try to distinguish between a courts holding
the legal proposition that the court has to answer (and for which the decision may serve as
precedent) and dicta legal principles that relate to the general subject but are not crucial to the
court's decision.
Some readers find that placing symbols in the margin of a case such as F for facts, I for
issue, H for holding, R for rationale, and D for dictum helps to spot the important parts
of a decision when the case is referred to again.
If after reading and thinking about a legal decision, you can succinctly state the facts, issue,
holding, and rationale, and understand the rationale of any concurring or dissenting opinion, you
can congratulate yourself on having read that decision very well.
Enjoy the cases.

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