Rafferty v. Cranston Public School Committee, 02-1005.

• Decision Date: 24 December 2002
• Docket Number: No. 02-1005.,02-1005.
• Citation: 315 F.3d 21
• Parties: SUSAN RAFFERTY, individually and as parent and natural guardian of Emily Rafferty, a minor, Plaintiff, Appellant, v. CRANSTON PUBLIC SCHOOL COMMITTEE; Robert Mattis, individually and in his official capacity as Special Education Director; Joseph Herbold, individually and in his official capacity as Director of Guidance; and Peter McWalters, individually and in his official capacity as Commissioner of the Rhode Island Department of Education, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

315 F.3d 21

SUSAN RAFFERTY, individually and as parent and natural guardian of Emily Rafferty, a minor, Plaintiff, Appellant, v. CRANSTON PUBLIC SCHOOL COMMITTEE; Robert Mattis, individually and in his official capacity as Special Education Director; Joseph Herbold, individually and in his official capacity as Director of Guidance; and Peter McWalters, individually and in his official capacity as Commissioner of the Rhode Island Department of Education, Defendants, Appellees.

No. 02-1005.

United States Court of Appeals, First Circuit.

Heard September 13, 2002.

Decided December 24, 2002.

COPYRIGHT MATERIAL OMITTED

Melissa F. Weber, for appellant.

Gregory P. Piccirilli, with whom Sciacca & Piccirilli, was on brief, for appellees Cranston Public School Committee, Robert Mattis and Joseph Herbold.

Anne T. Turilli, Special Assistant Attorney General, R.I. Department of Attorney General, with whom Sheldon Whitehouse, Attorney General, were on brief, for appellee Peter McWalters.

Before TORRUELLA, Circuit Judge, B. FLETCHER,^* Senior Circuit Judge, STAHL, Senior Circuit Judge.

TORRUELLA, Circuit Judge.

Plaintiff-appellant, Susan Rafferty ("Rafferty"), brings this appeal on behalf of herself and her child, Emily Rafferty ("Emily"). Rafferty appeals the district court's summary judgment order in favor of defendants-appellees, the Cranston Public School Committee; Robert Mattis, the Special Education Director; Joseph Herbold, the Director of Guidance; and Peter McWalters, the Commissioner of the Rhode Island Department of Education, as to her claims that defendants violated the Individuals with Disabilities Act ("IDEA"), 20 U.S.C. § 1400 et seq., and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.¹ In addition, Rafferty appeals the district court's order granting McWalter's motion for judgment on the pleadings as to her procedural due process claims under 42 U.S.C. § 1983. For the reasons stated below, we affirm.

I. Background

On May 19, 1994, at the end of Emily's second grade year, the Cranston Public Schools (the "District") evaluated her reading ability and identified her as a disabled child in need of special education services under IDEA. As required by IDEA, District personnel created an Individualized Education Program ("IEP") for Emily, which recommended that she remain in a mainstream classroom with non-disabled students and receive approximately three hours a week of additional reading assistance. See 20 U.S.C. § 1414(d)(1)(A).

Following her fifth grade year, Emily's IEP stated that she read at a third grade level, but it failed to include a statement of Emily's present education level, as required by IDEA. 20 U.S.C. § 1414(d)(1)(A)(i). At the end of Emily's sixth grade year, her IEP failed to indicate her specific reading level or include a statement of annual goals. Id. § 1414(d)(1)(A)(i)-(11). Throughout her years in the District, Emily had poor attendance, and in the seventh grade, the middle school principal asked Rafferty to provide the school with a letter from Emily's doctor explaining her absences. The letter stated that Emily's absences were due to a significant family disruption. Apparently, the Raffertys were having marital difficulties, and Rafferty had been diagnosed with cancer. Emily's school agreed to provide her with tutoring to help her transition back to school following her numerous absences. From approximately the middle of March until June of 1999, Emily attended tutoring provided by her school. On June 10, 1999, the school held an IEP meeting to discuss Emily's upcoming school year. Emily's father attended the meeting alone and signed the IEP.

During the summer of 1999, Emily vacationed at her aunt's house in Kentucky. In June of 1999, Rafferty completed a parent questionnaire for the Langsford Reading Center ("Langsford") in Kentucky, and Langsford personnel evaluated Emily on July 15, 1999. Four days before classes began at the District, Rafferty informed the District that Emily would be attending Langsford. From September to December of 1999, Emily received reading tutoring at Langsford. Following her attendance at the reading center, Emily matriculated at St. Francis, a private school in Kentucky.

On November 19, 1999, while Emily was still in Kentucky, Rafferty requested an IEP meeting. The District denied the request, stating that Emily was no longer enrolled in the District. Then, in January of 2000, Rafferty requested a due process hearing under IDEA, claiming that the District failed to give her notice of an IEP meeting held on May 27, 1999. After Rafferty made the hearing request, the District initiated a residency hearing. Although she admitted to living in Massachusetts with her mother while recuperating from brain cancer, she argued that their residence had never changed. A decision by McWalters, the Commissioner of the Rhode Island Department of Education, stayed a ruling on residency until the local level IDEA hearing officer made a finding regarding whether Cranston had provided Emily with a Free Appropriate Public Education ("FAPE"). McWalters reasoned that although there was evidence supporting the District's argument that Emily was sent to Kentucky because Rafferty was ill and unable to care for her, Rafferty should be given the opportunity to argue that she sent Emily to Kentucky because the District had failed to provide a FAPE, a showing that potentially could entitle Rafferty to reimbursement for the private school tuition.

The hearing officer determined that Emily's 1998 and 1999 IEPs were inadequate and inappropriate. Crucially though, the hearing officer also determined that Langsford was an inappropriate placement because it was a reading clinic rather than a school. Consequently, he denied private school reimbursement and only awarded Rafferty attorney fees. Both parties appealed the hearing officer's decision to a Department of Education review officer. The review officer upheld the finding that the District did not err when it refused to give Rafferty an IEP meeting after November 19, 1999 because Emily was living in Kentucky. In addition, the officer upheld the denial of tuition reimbursement because Rafferty did not notify the school at least 10 days prior to removing Emily from school, and Langsford did not constitute the least restrictive environment to which Rafferty could have sent Emily. Finally, the review officer reversed the hearing officer's decision to award attorney fees to plaintiff's counsel.

Rafferty then filed a complaint in the United States District Court for the District of Rhode Island. She claimed that the defendants violated her and Emily's rights under IDEA and engaged in prohibited retaliation against her because she requested a due process hearing. The district court adopted the detailed report and recommendation of the magistrate judge, granting defendants' motion for judgment on the pleadings with respect to the § 1983 claim against McWalters and granting summary judgment in favor of defendants as to all other claims.

II. Standard of Review

We review grants of summary judgment and dismissals on the pleadings de novo. Rose v. Yeaw, 214 F.3d 206, 209 (1st Cir.2000); United States v. U.S. Currency, $81,000.00, 189 F.3d 28, 33 (1st Cir. 1999). Although we need not defer to the district court, we still must give "due weight" to the administrative record by using an intermediate standard of review. Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). This standard "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." Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1st Cir.1993). "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 a finding is ultimately `left to the discretion of the [examining] court.'" G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 946 (1st Cir.1991) (citation omitted).

III. Waiver of Claims Not Raised at Due Process Hearing

Rafferty argues that the district court should have considered her claims that the District failed to provide adequate notice of procedural safeguards, as required by 20 U.S.C. § 1415(d), and that the District denied Rafferty access to records.² However, she did not raise these issues at her due process hearing.

IDEA gives the parent of a disabled child the right to an impartial due process hearing conducted by the local educational authority, if she is dissatisfied with "any matter relating to the identification, evaluation, or educational placement of [her] child" or feels her child is not receiving a FAPE. 20 U.S.C. § 1415(b)(6), (f)(1). Any aggrieved party can appeal the findings and decision of the hearing officer to the state educational agency. Id. § 1415(g). If the parent remains dissatisfied, she can bring a civil action in federal district court. Id. § 1415(i)(2).

IDEA requires that a plaintiff raise or exhaust claims concerning a disabled child's "educational situation" in the due process hearing. Weber v. Cranston Sch. Comm., 212 F.3d 41, 49 (1st Cir.2000). Plaintiff can circumvent the exhaustion requirement if she "can show that the agency's adoption of an unlawful general policy or practice would make resort to the agency futile, or that the administrative remedies afforded by subchapter II of IDEA are inadequate given the relief sought." Id. at 52.

Rafferty cannot meet any of the exceptions to the exhaustion requirement. She has not pointed to any evidence indicating that the agency adopted an unlawful general policy or practice. Rafferty refers to records held by the District that were not turned over to her until a month after her request, but this does not constitute a charge of an unlawful general policy or practice by the agency. Further, she...