Caroline T. v. Hudson School Dist.

• Decision Date: 02 August 1990
• Docket Number: No. 90-1245,90-1245
• Parties: 63 Ed. Law Rep. 56 CAROLINE T., Plaintiff, Appellant, v. HUDSON SCHOOL DISTRICT, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 752

915 F.2d 752

63 Ed. Law Rep. 56

CAROLINE T., Plaintiff, Appellant, v. HUDSON SCHOOL DISTRICT, Defendant, Appellee.

No. 90-1245.

United States Court of Appeals, First Circuit.

Heard Aug. 2, 1990.

Decided Sept. 25, 1990.

Martin Ames, Chelmsford, Mass., with whom Fred K. Mayer, III, Nashua, N.H., was on brief, for plaintiff, appellant.

Gerald M. Zelin, with whom Soule, Leslie, Zelin, Sayward & Loughman, Salem, N.H., was on brief, for defendant, appellee.

Before TORRUELLA, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.

TORRUELLA, Circuit Judge.

This appeal presents the issue of whether the due process rights of an educationally handicapped child are violated when a school district is permitted to make an unofficial stenographic transcript or electronic recording of a special education hearing. Finding the issue wholly devoid of merit, we affirm the decision of the district court answering the question in the negative, denying appellants' motion for a restraining order, and dismissing their complaint.

I. BACKGROUND

Thirteen year-old Caroline T., the daughter of Mr. and Mrs. T., lives with her parents in Hudson, New Hampshire. The Hudson School District is responsible for providing a free appropriate education to Caroline, given her educational handicap (dyslexia) and need for unique educational services. See 20 U.S.C. Secs. 1400(c)-1401(a)(1); N.H. Rev. Stat. Ann. Secs. 186-C:1-186-C:2(I). In June 1989, the District offered Caroline an Individualized Educational Plan ("IEP") for the 1989-90 school year, which was to be implemented by placing Caroline in one of the District's public schools. Her parents rejected the plan and on July 11, 1989 requested an impartial due process hearing to resolve the dispute. ¹

A prehearing conference was held on October 30, 1989. All parties were represented by counsel, and the hearing officer took notes and tape recorded the proceeding. Thereafter, he issued an order stating that "[t]he school district may employ a court reporter to supplement the undersigned's effort to record the hearing." Any tape recording made by the District would necessarily have been independent of the hearing officer's recordings, which were part of the official record of the proceedings. See Edward B. v. Paul, 814 F.2d 52, 53-54 (1st Cir.1987). These official recordings are made available to the parties for purposes of appeal. 20 U.S.C. Sec. 1415(d)(3); 34 C.F.R. Sec. 300.508(a)(4); N.H.Code of Admin. R. Ed. 1127.02(a)(10)-d.

Caroline's hearing began on December 18, 1989. The District's counsel brought a private court reporter certified by the State of New Hampshire, N.H. Rev. Stat. Ann. 331-B:2 VI, -B:3, -B:9, together with his equipment, to record the proceedings at the District's expense. After counsel for Caroline's parents announced their intention to appeal the prehearing order allowing the school district to employ a court reporter to record the hearing, the hearing was recessed. Appellants contend that they had no prior notice that the District would engage its own stenographer, or that an unofficial recording would be made, notwithstanding the order issued at the prehearing conference.

On December 19, 1989, a complaint was filed in the district court seeking an injunction to restrain enforcement of the hearing officer's prehearing conference order regarding the District's right to "record the hearing," and judicial review of the prehearing order itself. 20 U.S.C. Sec. 1415(e)(2). After a magistrate recommended that the request for a restraining order be denied, and that the complaint be dismissed under Fed.R.Civ.P. 12(b)(6) for failure to state a cause of action, the district court entered judgment to that effect on January 22, 1990.

After carefully reviewing the record, and finding appellants' arguments totally lacking in merit, we affirm the decision of the district court.

II. STANDARD OF REVIEW

At the district court level, appellants sought purely injunctive relief--an order barring the District from recording the special education hearing. Since injunctive relief is a discretionary remedy, K-Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907, 915 (1st Cir.1989), on appeal, we review only to ensure that the district court did not abuse its discretion in granting, or failing to grant, such relief. Id.

Caroline sought two forms of injunctive relief: temporary and permanent. The standards are nearly identical.

In the First Circuit, a plaintiff must satisfy four criteria in order to be entitled to a preliminary injunction. The Court must find: (1) that plaintiff will suffer irreparable injury if the injunction is not granted; (2) that such injury outweighs any harm which granting injunctive relief would inflict on the defendant; (3) that the plaintiff has exhibited a likelihood of success on the merits; and (4) that the public interest will not be adversely affected by the granting of an injunction.

Agency Rent-A-Car, Inc. v. Connolly, 686 F.2d 1029, 1034 (1st Cir.1982). Where a plaintiff seeks permanent injunctive relief, the test is the same, except that "the movant must show actual success on the merits of the claim, rather than a mere likelihood of such success." K-Mart Corp., 875 F.2d at 914-15. For the reasons explicated below, we hold that the district court did not abuse its discretion in denying appellant's request for an injunction.

III. TAPE RECORDING AND DUE PROCESS

Appellants argue that allowing a school district to employ a third party to make an unofficial recording of a special education proceeding violates the due process rights of parents and their educationally handicapped children. We can find no legal support for this contention.

Although it is true that, as appellants argue, hearing officers have a responsibility to conduct hearings in a manner consistent with impartiality, 34 C.F.R. Sec. 300.500; N.H.Code of Admin. R. Ed. 1127.02(A), and privacy, 20 U.S.C. Sec. 1417(c); 34 C.F.R. Sec. 300.508(b)(2); N.H.Code of Admin. R. Ed. 1127.02(a)(10)(g), this duty is not incompatible with permitting one party to employ a stenographer for the purpose of transcribing the proceedings. The statutes do not suggest otherwise.

The Education for All Handicapped Children Act, 20 U.S.C. Sec. 1401 et seq. (1980) ("Act"), guarantees both parties the right to a verbatim written or electronic record of the administrative hearing. 20 U.S.C. Sec. 1415(d); see Edward B. v. Paul, 814 F.2d at 54. The statutes clearly provide that:

Any party to any hearing ... shall be accorded ... (3) the right to a written or electronic verbatim record of such hearing, and (4) the right to written findings of fact and decisions...."

20 U.S.C. Sec. 1415(d). See also 34 C.F.R. Secs. 300.508(a)(4) & (5); N.H.Code of Admin. R. Ed. 1127.02(a)(10)(d) & (e). But the statutes do not give hearing officers the exclusive prerogative to make recordings. Indeed, as the United States District Court for the District of New Hampshire warned in a similar case, the tapes made by the special education hearing officer "were of very poor quality and could not be accurately transcribed.... The court ... [sent] a copy of this order to the [New Hampshire] State Department of Education with the purpose of indicating to it the need for adequate tapes in future proceedings." Edward B. v. Rochester School District, No. C86-7-L, order (D.N.H. Nov. 17, 1987).

Apparently the court's suggestions have gone unheeded. As one affidavit in this case states, "it is impossible to produce a verbatim transcript of administrative hearings based upon the state's tapes. There are gaps in what has been recorded, speakers are sometimes inaudible (cannot be heard), and speakers are sometimes indiscernible (voices can be heard but words cannot be understood)." Joint Appendix at 62-63. Thus, we conclude that, in order to secure its entitlement to a verbatim record of the hearing, the District had a right to ensure that a quality recording was made. ² The attendance of a court reporter is a reasonable and necessary means for the school district to secure its statutory right to a verbatim record.

Nor can we say that the privacy rights of the child or of her parents would be violated by the attendance of the court reporter/stenographer. By statute, public access to special education hearings is permitted only with the permission of the parents or, in some cases, of the child. 34 C.F.R. Sec. 300.508(b)(2); N.H.Code of Admin. R. Ed. 1127.02(a)(10)(g). Similarly, the public's right to know or to obtain information regarding the hearing is in the control of the parents and the child. 20 U.S.C. Secs. 1412(2)(D) & 1417(c); 34 C.F.R. Sec. 300.574. This court cannot agree, however, with appellants' contention that allowing the presence of the court reporter/stenographer is equivalent to release of private information about the hearing without the permission of Caroline's parents, in violation of their right to privacy.

Section 1415(e)(2) confers upon federal courts the jurisdiction to hear appeals from administrative hearings. 20 U.S.C. Sec. 1415(e)(2). As the magistrate found, subsection (e)(2) clearly contemplates an obligation on the part of the appealing party to provide the court with a transcript of the hearing. See Edward B. v. Paul, 814 F.2d 52. We can find no meaningful distinction between permitting a court reporter/stenographer to attend a hearing to make the verbatim recording, and exposing that same person to the recording at the completion of the hearing to make a transcript of the proceeding. Thus, we conclude that the presence of a court reporter/stenographer at a special education hearing is not the equivalent of opening the hearing to the public. ³

IV. LEVEL PLAYING FIELD

Appellants next contend that the Act contemplates that both parties be on equal footing, on a level playing field. 20 U.S.C. Sec. 1415(b). Therefore, they argue, either both parties should be given the means to have a private recording...