Roland M. v. Concord School Committee, 89-2130

• Decision Date: 04 June 1990
• Docket Number: No. 89-2130,89-2130
• Citation: 910 F.2d 983
• Parties: 62 Ed. Law Rep. 408 ROLAND M. and Miriam M., Plaintiffs, Appellants, v. The CONCORD SCHOOL COMMITTEE, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 983

910 F.2d 983

62 Ed. Law Rep. 408

ROLAND M. and Miriam M., Plaintiffs, Appellants, v. The CONCORD SCHOOL COMMITTEE, et al., Defendants, Appellees.

No. 89-2130.

United States Court of Appeals First Circuit.

Heard June 4, 1990.

Decided Aug. 3, 1990.

As Amended Aug. 8, 1990.

Rehearing and Rehearing En Banc

Denied Sept. 14, 1990.

David Berman, for appellants.

Richard N. Sullivan, with whom Kenney, Conley, Sullivan & Smith, P.C. was on brief, for appellees.

Before SELYA and SOUTER ^* Circuit Judges, and BOWNES, Senior Circuit Judge.

SELYA, Circuit Judge.

Appellants Roland and Miriam M. reside in Concord, Massachusetts, with Matthew M., their 15-year-old son. Matthew is "handicapped" within the meaning of the Education of the Handicapped Act, 20 U.S.C. Secs. 1400-1485 (1982 & Supp. V 1987) (the Act). When a controversy arose over his educational course, the Bureau of Special Education Appeals (BSEA), an adjunct of the Massachusetts Department of Education (MassEd), ruled that the Concord School Committee (Concord) had offered Matthew an appropriate education, but ordered the parents reimbursed for certain interim expenditures. On an ensuing petition for judicial review, the federal district court upheld the qualitative finding and decided that appellants should defray all the contested expenses. We affirm.

I. OVERVIEW

Through the medium of the Act, funds are allocated to assist the states in educating handicapped children. To receive federal money, a state must provide all handicapped children with "a free appropriate public education." 20 U.S.C. Secs. 1400(c), 1414(b)(2)(A), 1416; see Burlington v. Department of Educ., 736 F.2d 773, 784-85 (1st Cir.1984) (Burlington II ), aff'd, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985).

Substantively, the "free appropriate public education" ordained by the Act requires participating states to provide, at public expense, instruction and support services sufficient "to permit the child to benefit educationally from that instruction." Board of Educ. v. Rowley, 458 U.S. 176, 203, 102 S.Ct. 3034, 3049, 73 L.Ed.2d 690 (1982). While a state may not depart downward from the minimum level of appropriateness mandated under federal law, "a state is free to exceed, both substantively and procedurally, the protection and services to be provided to its disabled children." Burlington II, 736 F.2d at 792; see also 20 U.S.C. Sec. 1401(18)(B). Some states have elected to go considerably above the federal floor. See, e.g., Burke County Bd. of Educ. v. Denton, 895 F.2d 973, 983 (4th Cir.1990) (North Carolina requires that opportunity be given to handicapped students to reach their "full potential commensurate with the opportunity given other children"). Massachusetts is such a jurisdiction: the Commonwealth defines an appropriate education as one assuring the "maximum possible development" of the child. See Stock v. Massachusetts Hosp. School, 392 Mass. 205, 211, 467 N.E.2d 448, 453 (1984); see generally Mass.Gen.L.Ann. ch. 71B, Secs. 1-14 (West 1982 & Supp.1990). Because state standards are enforceable in federal court insofar as they are not inconsistent with federal rights, David D. v. Dartmouth School Comm., 775 F.2d 411, 423 (1st Cir.1985), cert. denied, 475 U.S. 1140, 106 S.Ct. 1790, 90 L.Ed.2d 336 (1986); Burlington II, 736 F.2d at 789 & n. 19, we refer to, and consider, Massachusetts law where relevant in the pages which follow.

As a procedural matter, the Act commands that states and local education agencies (LEAs) like Concord "assure that handicapped children and their parents ... are guaranteed procedural safeguards with respect to the provision of free appropriate public education." 20 U.S.C. Sec. 1415(a). The primary safeguard is the obligatory development of an individualized education program (IEP). Rowley, 458 U.S. at 181, 102 S.Ct. at 3038; Doe v. Defendant I, 898 F.2d 1186, 1189 (6th Cir.1990); see also 20 U.S.C. 1401(18); Mass.Gen.L. ch. 71B, Sec. 3. That document compiles information and goals anent a particular student's educational progress. It must include statements about the child's current performance, long-term and short-term instructional targets, and objective criteria for measuring the student's advance. See 20 U.S.C. Sec. 1401(19); 34 C.F.R. Sec. 300.346 (1989).

Under the Act, mainstreaming is preferred. States must educate handicapped and non-handicapped children together "to the maximum extent appropriate," see 20 U.S.C. Sec. 1412(5); Rowley, 458 U.S. at 202, 102 S.Ct. at 3048, and special education must be provided in "the least restrictive environment," see 34 C.F.R. Sec. 300.552(d); Mass.Gen.L. ch. 71B, Sec. 2; Mass.Regs.Code tit. 603, Sec. 112.0 (1986). In Massachusetts, therefore, an IEP must address a handicapped student's needs "so as to assure his maximum possible development in the least restrictive environment consistent with that goal." David D., 775 F.2d at 423.

The development of an IEP requires the participation of a team of individuals, including the parents, the child's teacher, designated specialists, and a representative of the LEA. See 20 U.S.C. Sec. 1401(19); 34 C.F.R. Sec. 300.344; Mass.Regs.Code tit. 603, Sec. 311.0. Once promulgated, an IEP must be reviewed annually and revised when necessary. See 20 U.S.C. Secs. 1414(a)(5), 1413(a)(1), (11); 34 C.F.R. Sec. 300.343(d); Mass.Gen.L. ch. 71B, Sec. 3. If complaints arise, the state must convene "an impartial due process hearing." See 20 U.S.C. Sec. 1415(b)(2). In the Commonwealth, this function is performed by the BSEA. Mass.Gen.L.Ann. ch. 15, Sec. 1M (West Supp.1990). The hearing's outcome is reviewable in either state or federal court, and the reviewing tribunal has broad discretion to grant appropriate relief. See Burlington, 471 U.S. at 369, 105 S.Ct. at 2002; Doe v. Brookline School Comm., 722 F.2d 910, 917-18 (1st Cir.1983); Carrington v. Commissioner of Educ., 404 Mass. 290, 294, 535 N.E.2d 212, 215 (1989). The court's focus is upon the educational program which finally emerges from the administrative review process, not the IEP as originally proposed. See Springdale School Dist. v. Grace, 693 F.2d 41, 43 (8th Cir.1982), cert. denied, 461 U.S. 927, 103 S.Ct. 2086, 77 L.Ed.2d 298 (1983).

II. BACKGROUND

We summarize the factual underpinnings and procedural history of this dispute, presenting additional details as necessary in the course of our opinion.

Matthew has a number of disabilities, including difficulties with visual motor skills, visual perception, visual tracking, fine motor coordination, and gross motor coordination. He is easily distracted and has trouble maintaining and regaining concentration. Consequently, Matthew finds it hard to relate to peers and his real-world functioning is impaired. He often talks to himself, destroys nearby objects, proves unable to get himself ready for school, eats sloppily, and so forth. Nevertheless, he possesses normal intelligence and enjoys significant potential for academic progress. ¹

From kindergarten through fifth grade, Matthew attended the Concord public schools. He was placed in a self-contained classroom with other learning-disabled children. In June 1986, at the end of fifth grade, Matthew's parents unilaterally moved him to Landmark, a private residential school. Some three months later, when the new school year was about to start, the parents rejected Concord's 1986-87 IEP--which called for Matthew's continued placement in public school--instead enrolling him at Landmark for the school year. Concord did not consent.

At the parents' request, the BSEA undertook to determine Matthew's appropriate placement for 1986-87. It was not until June 1987 (after the school year had ended) that the decision was announced. Finding that Matthew's "major presenting problem" was a lack of socialization skills (rather than a learning disability per se ), the BSEA, through its hearing officer, made a detailed comparison of Concord as opposed to Landmark, concluding that the former proposed a better program and that Matthew's needs were "not so severe as to dictate a residential placement." Hence, Concord's 1986-87 IEP was adjudged appropriate with the addition of a supplementary, after-school socialization component. ² Although the BSEA acknowledged that Landmark was not the last agreed-upon placement, it nevertheless ordered Concord to reimburse appellants for first semester costs there.

Disappointed, the parents brought suit. In the district court, they assigned error to BSEA's determination that Concord was an appropriate placement and to its refusal to grant reimbursement of Landmark-related expenses for the complete 1986-87 school year. Concord cross-claimed against MassEd, contending that the BSEA exceeded its authority by ordering any reimbursement.

In the meantime, Concord duly convened a team to prepare Matthew's 1987-88 IEP. When issued on July 29, 1987, it proved to be much the same as the 1986-87 IEP. On August 28, Matthew's parents rejected it. The federal court action was stayed while the BSEA held another round of hearings. On August 19, 1988, through a second hearing officer, BSEA ruled that the 1987-88 IEP was substantively acceptable and that certain claimed procedural defects were excusable. The BSEA also found that Landmark's regimen was too restrictive and did not suitably address Matthew's capacity to be mainstreamed. The decision duly noted Matthew's progress at Landmark over the previous months--but the hearing officer remained "unconvinced that a nexus exist[ed]" between Matthew's improvement and his tenure at Landmark. Appellants thereupon amended the federal court complaint to embrace their assertion that the second BSEA decision was unfounded.

At a trial encompassing both school years, the district court accepted only the administrative record as evidence and prevented the parents from calling certain additional witnesses. After briefing and argument, the judge found that the...