Hampton School Dist. v. Dobrowolski, 91-2273

• Decision Date: 05 June 1992
• Docket Number: No. 91-2273,91-2273
• Citation: 976 F.2d 48
• Parties: 77 Ed. Law Rep. 1109 HAMPTON SCHOOL DISTRICT, Plaintiff, Appellee, v. Charles DOBROWOLSKI, et al., Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 48

976 F.2d 48

77 Ed. Law Rep. 1109

HAMPTON SCHOOL DISTRICT, Plaintiff, Appellee, v. Charles DOBROWOLSKI, et al., Defendants, Appellants.

No. 91-2273.

United States Court of Appeals, First Circuit.

Heard June 5, 1992.

Decided Sept. 23, 1992.

Louis W. Helmuth with whom Van Buiten, Helmuth, Lobe & Rees, Burlington, Vt., was on brief, for defendants, appellants.

Gerald M. Zelin with whom Diane M. Gorrow and Soule, Leslie, Zelin, Sayward and Loughman, Salem, N.H., were on brief, for plaintiff, appellee.

Before CYR, Circuit Judge, RONEY, ^* Senior Circuit Judge, and PIERAS, ^** District Judge.

RONEY, Senior Circuit Judge:

The parents of a child with learning disabilities who is entitled to individualized education in the public schools sought reimbursement for the cost of a private school for a two year period during which the parents removed their child from the public school system, believing that the educational program offered by the school district during that period was inappropriate. An administrative hearing officer ruled for the parents. Finding that the program offered by the school district for those years was a free appropriate public education as envisioned by the relevant statute, the district court reversed the administrative decision. We affirm.

In light of the evidentiary support for the district court's factual findings concerning the appropriateness of the educational program offered by the school, we cannot say the court committed clear error. In addition, although the parents may not have waived their claims of procedural violations, the shortcomings they allege do not entitle them to relief.

The Individuals with Disabilities Education Act (the Act), 20 U.S.C. § 1400 et seq., requires that to qualify for federal financial assistance, participating states must adopt policies assuring all students with disabilities the right to a "free appropriate public education." 20 U.S.C. § 1412(1). The state must assure that, to the maximum extent appropriate, this education will be provided in the least restrictive environment with children who are not disabled. 20 U.S.C. § 1412(5)(B). The Act requires the state to establish and maintain certain procedures "to assure that children with disabilities and their parents or guardians are guaranteed procedural safeguards with respect to the provision of a free appropriate public education." 20 U.S.C. § 1415(a).

Schools are required to develop an individualized education program (IEP) for each child with a disability. An IEP is a program of instruction and related services that has been specially designed to meet the unique needs of the child. The IEP document contains information concerning the child's present levels of performance; a statement of annual goals and short term instructional objectives; a statement of the specific educational services to be provided, and the extent to which this can be done in the regular educational programs; and objective criteria for measuring the student's progress.

The IEP is developed by a team including a qualified representative of the local educational agency, the teacher, the parents or guardian, and, where appropriate, the student. 20 U.S.C. § 1401(a)(20). Thereafter, the IEP must be reviewed at least annually and revised when necessary. 20 U.S.C. § 1414(a)(5). Parents who disagree with a proposed IEP are entitled to an impartial due process hearing. 20 U.S.C. § 1415(b)(2). Any party aggrieved by the decision of the administrative hearing officer can appeal to either state or federal court. 20 U.S.C. § 1415(e). An IEP is appropriate under the Act if it provides instruction and support services which are reasonably calculated to confer educational benefits to the student. Board of Educ. v. Rowley, 458 U.S. 176, 200-07, 102 S.Ct. 3034, 3047-51, 73 L.Ed.2d 690 (1982); Abrahamson v. Hershman, 701 F.2d 223, 226-27 (1st Cir.1983).

Michael Dobrowolski, the son of Frances and Charles Dobrowolski, was born on November 12, 1974. While Michael was in second grade in Derry, New Hampshire, he was found to have certain learning disabilities. Derry Cooperative School District furnished IEPs for the 1983-84 and 1984-85 school years, when Michael was in the third and fourth grades. Both of these IEPs were accepted by the Dobrowolskis. Derry had proposed a more intensive IEP for the fifth grade which was not implemented because the family left the district and moved to Hampton, New Hampshire.

The Hampton School District received from the Derry School District Michael's report cards and the proposed fifth grade IEP. In addition, representatives of Hampton met with Mrs. Dobrowolski prior to the beginning of the 1985-86 school year and knew that Michael was a special education student. At the start of that term, however, Hampton had not yet offered an IEP. As a result, Michael started the fifth grade in mainstream classes with no special educational program. Several weeks later, on October 17, 1985, an IEP was developed for Michael. That plan placed Michael in mainstream classes for all subjects, and made the resource room available for up to three hours per week, as needed.

Michael did not make much use of the resource room the first semester. His grades plummeted in the ensuing semesters. As his grades fell, Michael's time in the resource room was increased, reaching four hours per week by March 1986.

During the summer of 1986, the Dobrowolskis enrolled Michael at the Learning Skills Academy, a private special education day school, where he was tutored in math, social communication, peer relation skills, and reading. Michael apparently made significant progress there, and it appears that this contrast to his performance at Hampton led the Dobrowolskis to question the wisdom of Michael's continued enrollment in the public school.

In August 1986, Mrs. Dobrowolski was told by Mrs. Lee Cooper, Hampton's director of special education, that Michael's IEP for sixth grade could be the same as that for the fifth grade, since federal law does not require more than an annual review of an IEP, and the fifth grade IEP had been modified in March 1986. Mrs. Cooper also told Mrs. Dobrowolski that the district nonetheless would review Michael's IEP during the first week of school. On September 2, however, Mrs. Dobrowolski informed Hampton that she unilaterally had decided to enroll Michael at Learning Skills Academy.

Meetings were held on September 4, 1986, and September 11, 1986. The IEP developed as a result of these meetings provided for another increase in resource room time. It also provided for modifications in Michael's mainstream academic classes. The modifications included preferential seating, teacher cues to Michael to pay attention, guidance to assist him in time management, and short term goals with frequent checkups.

The Dobrowolskis disagreed with this IEP, as well as the revisions presented at meetings in October, November, and December of 1986. The Dobrowolskis requested a due process hearing in January 1987. That request was later withdrawn without prejudice. The Dobrowolskis refiled their request in September 1987, contesting both the 1986-87 IEP and the IEP that had been prepared for the 1987-88 school year. Michael remained at the Learning Skills Academy during the sixth and seventh grades. The parents sought reimbursement for the cost of tuition at and transportation to the private school. Their challenge was based on claims of both substantive and procedural violations of the Act.

A due process hearing was held before a State of New Hampshire hearing officer in February and March of 1988. The hearing officer found that the IEPs Hampton offered for the 1986-87 and 1987-88 school years were inappropriate. Finding the program provided at the Learning Skills Academy appropriate, the hearing officer ordered Hampton to reimburse the Dobrowolskis for their expenses. The hearing officer did not address the Dobrowolskis' claims of procedural violations. Hampton appealed the administrative decision to the United States District Court for the District of New Hampshire. After a short bench trial, the district court overturned the hearing officer's decision and entered judgment for Hampton.

The district court found that the September 1986 IEP contrasted sharply with the one developed in October 1985 and modified in March 1986, and that the individualized instruction offered by this IEP "likely would have yielded more positive academic results than did the previous IEPs." The district court further found that the IEP proposed for 1987-88 was substantially similar to the 1986-87 IEP. The court acknowledged that due weight must be accorded the decision of the hearing officer, but found that reversal of the administrative decision was warranted because the preponderance of the evidence indicated that the IEPs for the 1986-87 and 1987-88 school years offered programs reasonably calculated to yield educational benefits in the least restrictive environment.

Trial-Level Review

The Act provides that, in reviewing the decision of a state hearing officer, the district 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." 20 U.S.C. § 1415(e)(2). 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." Town of Burlington v. Department of Educ., 736 F.2d 773, 791 (1st Cir.1984), aff'd, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). "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 ...