Amann v. Stow School System

• Decision Date: 29 December 1992
• Docket Number: No. 92-1382,92-1382
• Citation: 982 F.2d 644
• Parties: 80 Ed. Law Rep. 42 Christopher AMANN, et al., Plaintiffs, Appellants, v. STOW SCHOOL SYSTEM, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 644

982 F.2d 644

80 Ed. Law Rep. 42

Christopher AMANN, et al., Plaintiffs, Appellants, v. STOW SCHOOL SYSTEM, et al., Defendants, Appellees.

No. 92-1382.

United States Court of Appeals First Circuit.

Submitted July 17, 1992.

Decided Dec. 29, 1992.

Richard Amann on brief pro se.

Scott Harshbarger, Atty. Gen., and Pierce O. Cray, Asst. Atty. Gen., Boston, MA, on brief for appellees Com. of Massachusetts Bureau of Sp. Educ. Appeals, Dept. of Educ. and Dept. of Public Health.

Kevin M. Hensley and Needham and Warren, Boston, MA, on brief for appellee Town of Stow.

Regina Williams Tate and Murphy, Hesse, Toomey and Lehane, Quincy, MA, on brief for appellees Stow School System and Stow School Committee.

Before SELYA, CYR and BOUDIN, Circuit Judges.

PER CURIAM.

This appeal presents a challenge, under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., to the adequacy of an "individualized education program" prepared by the Town of Stow, Massachusetts for a learning-disabled child who lives in the town. ¹ The district court ruled that Stow had followed the required procedures in formulating the education program, that the Commonwealth of Massachusetts had given the plaintiffs all the process due them in their administrative challenge to the program's adequacy, and that the program provided a "free appropriate public education" for the child. It therefore granted summary judgment to all defendants. This appeal followed. We affirm.

I

The IDEA requires states that receive federal special education funds to provide all handicapped children in their jurisdictions with a "free appropriate public education." 20 U.S.C. § 1415(a); 20 U.S.C. § 1401(a)(18). This requirement has both procedural and substantive components. Burlington v. Department of Education, 736 F.2d 773, 788 (1st Cir.1984) ("Burlington II"). "The primary safeguard is the obligatory development of an individualized education program (IEP)." Roland M. v. Concord School Committee, 910 F.2d 983, 987 (1st Cir.1990). "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." Hampton School District v. Dobrowolski, 976 F.2d 48, 50 (1st Cir.1992).

The IEP is developed by a team that includes a representative of the local educational agency, the child's teacher and parents, and, in appropriate cases, the child himself. 20 U.S.C. § 1401(a)(20). The IEP must be reviewed at least annually and revised when necessary. 20 U.S.C. § 1414(a)(5); 34 C.F.R. § 300.343(d). The parents are entitled to reject a proposed IEP, and if they do, they can demand an "impartial due process hearing" on its adequacy and appropriateness. 20 U.S.C. § 1415(b)(2). In Massachusetts, such hearings are conducted by the Bureau of Special Education Appeals. 603 C.M.R. § 28.400.0 et seq. Any party aggrieved by the decision of the administrative hearing officer can appeal to either state or federal court. 20 U.S.C. § 1415(c).

Substantively, the IDEA itself requires courts evaluating an IEP to ask only whether the program is "reasonably calculated to enable the child to receive educational benefits." Board of Education v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 3051, 73 L.Ed.2d 690 (1982). Federal law, however, merely establishes a floor upon which the states are free to build. See Burlington II, 736 F.2d at 792. The Massachusetts legislature has gone further than Congress; it defines an appropriate education as one that assures the "maximum possible development" of the child. M.G.L. ch. 71B, § 2.

II

Christopher Amann, now fourteen years old, lives in Stow, Massachusetts with his parents, Richard and Barbara Amann. In 1983, Christopher enrolled in kindergarten in a Stow public school. It soon appeared that Christopher suffered from learning disabilities. This discovery triggered the Town's obligations under the IDEA, and in November 1983 Stow implemented an IEP for Christopher. Christopher's parents accepted this program, and three subsequent annual revisions, and Christopher attended Stow schools through the third grade.

By September 1987, however, when Christopher entered the fourth grade, his parents had become disenchanted with his educational progress, or lack of it, in the Stow school system. Rather than return him to public school, they enrolled Christopher in Carroll School, a private school in Lincoln, Massachusetts that is devoted to teaching children with learning disabilities. The Amanns say that some representative of the Stow school system recommended sending Christopher to a private school. However, the Amanns never asked for or obtained Stow's formal consent to the transfer, nor did they formally reject the then-current IEP calling for Christopher to attend public school, or request a hearing on its adequacy.

Christopher attended the fourth and fifth grades at Carroll School, at his parents' expense. During this time, neither Stow nor Carroll School reviewed or revised the IEP that the Town had promulgated in December 1986, and that would, in the normal course of events, have come up for examination in December 1987. Stow considered Christopher's enrollment at Carroll School to be a unilateral, private placement that extinguished the Town's obligations under the IDEA, while Carroll School does not create IEPs for privately funded students.

This was the status quo until January 1989, when, in the middle of Christopher's fifth-grade term, the Amanns sent Stow a letter asking it to prepare an IEP for Christopher, and, "during the pendency," to pay for his education at Carroll School.

Stow declined to pay Christopher's Carroll School tuition, but it did respond to the request for an IEP. It evaluated Christopher, convened a "team," and in March 1989 came up with a new IEP. The Amanns neither accepted nor rejected this program. Rather, they postponed their decision until after Christopher had been evaluated, at Stow's expense, at Children's Hospital in Boston. In the meantime, Christopher finished fifth grade and entered sixth grade at Carroll School.

After the evaluation, in late 1989, Stow produced another IEP. Under its terms, Christopher would have returned to Stow and received his language arts and mathematics instruction from a special education teacher who would also have provided him with a daily "academic support class." However, the IEP would have "mainstreamed" Christopher into regular education classes for social studies, science, music, art, and non-academic subjects such as physical education and industrial arts.

The Amanns formally rejected this proposal and asked for a hearing. Stow renewed the rejected IEP in April 1990.

A hearing officer at the Massachusetts Bureau of Special Education Appeals (BSEA) heard four days of testimony in May and June 1990, and compiled a formidable documentary record. The Amanns were represented by counsel. At the end of August 1990 the hearing officer issued his decision. He ruled that Stow had no obligation, either to pay for Christopher's private education or to review or revise his IEP, between September 1987, when the Amanns placed Christopher at Carroll School, and January 1989, when they asked Stow for a new IEP.

The hearing officer also ruled that the IEP Stow had proposed after receiving the Children's Hospital evaluation was "appropriate to address [Christopher's] special education needs so as to assure his maximum possible educational development in the least restrictive educational environment." However, the hearing officer ordered Stow to make two changes to the IEP: 1) to record on the document the services of a "mainstream facilitator" (a teacher designated to monitor and support Christopher's progress in regular education classes), and 2) to make it clear that Christopher would not attend regular industrial arts classes without appropriate support to ensure his safety when using power tools or other dangerous instruments. Because the proposed IEP was otherwise adequate, the hearing officer concluded that Stow was "not financially responsible for [Christopher's continued] Carroll School placement."

In September 1990, Christopher entered the seventh grade at Carroll School. His parents, meanwhile, contested the hearing officer's ruling. Their lawyer filed a motion for reconsideration, claiming that the last proposed IEP was inadequate because it did not provide for a "mainstream facilitator." ² The hearing officer denied this motion. Mr. Amann then asked for a "compliance hearing" to challenge Stow's implementation of the IEP. The BSEA held a compliance hearing in November 1990, and found that Stow had complied with the hearing officer's decision by making the required modifications to the IEP and thus had "implemented" the program insofar as that was possible given Christopher's continued attendance at Carroll School. Finally, the Amanns asked to re-open the proceedings in order to raise new charges of lead contamination in the Stow public schools. The BSEA heard argument on this request in December 1990, but refused to reopen the case because it found that the Amanns could, and therefore should, have made the charges earlier.

Even before the BSEA proceedings had concluded, the Amanns went to court. Mr. Amann filed a perfunctory complaint in the United States District Court for the District of Massachusetts in November 1990, but did not immediately serve it on the defendants. In March 1991, Mr. Amann filed a lengthy amended complaint. The amended complaint named Christopher, Richard and Barbara Amann as plaintiffs, and the Town of Stow,...