Lenn v. Portland School Committee

Decision Date08 June 1993
Docket NumberNo. 93-1123,93-1123
Citation998 F.2d 1083
Parties84 Ed. Law Rep. 685, 2 A.D.D. 547 Daniel LENN, etc., et al., Plaintiffs, Appellants, v. PORTLAND SCHOOL COMMITTEE, et al., Defendants, Appellees. . Heard
CourtU.S. Court of Appeals — First Circuit

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.

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 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 1989-90 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 sixth-grade 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 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.

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 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 trial-court 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).

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...

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