Lessard v. Wilton Lyndeborough Coop. School Dist., 07-1860.

Citation518 F.3d 18
Decision Date25 February 2008
Docket NumberNo. 07-1860.,07-1860.
PartiesMark LESSARD and Linda Lessard, Plaintiffs, Appellants, v. WILTON-LYNDEBOROUGH COOPERATIVE SCHOOL DISTRICT and New Hampshire Department of Education, Defendants, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Plumb & Murray were on brief, for appellants.

Jeanne M. Kincaid, with whom Melissa A. Hewey and Drummond Woodsum & MacMahon were on brief, for appellees.

Before LYNCH, Circuit Judge, SELYA and SILER,* Senior Circuit Judges.

SELYA, Senior Circuit Judge.

This appeal stems from parents' laudable efforts to provide the best possible education for their profoundly disabled daughter. After disagreements arose over the contents of the child's proposed individualized education program (IEP), a state hearing officer overruled the parents' objections and concluded that the proposed IEP complied with the strictures of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1491 (2000).1 A federal district court affirmed that decision.

On appeal, we hold that the defendants — the local school district and the state educational agency — fulfilled their responsibilities under the IDEA, that the delays complained of were attributable to the parents (and, thus, afford no grounds for relief), and that the IEP at issue here satisfied the applicable statutory imperatives. Consequently, we affirm the judgment below.

I. BACKGROUND

At the heart of this litigation stands a young woman named Stephanie Lessard, who was eighteen years of age at the time of the relevant events. We rehearse the facts pertaining to Stephanie's plight as supportably found by the district court. See Lessard v. Wilton-Lyndeborough Coop. Sch. Dist., 2007 WL 1221103, at *1-4 (D.N.H. Apr. 23, 2007).

Stephanie Lessard has been diagnosed with moderate mental retardation (she possesses an IQ of 42), cognitive delays, speech impairments, a seizure disorder, scoliosis, a leg-length discrepancy, and partial paralysis of her left side. Since 2001, she has been a day student at Crotched Mountain Rehabilitation Center, a New Hampshire facility providing special needs services to the Wilton-Lyndeborough Cooperative School District (the School District).

In April of 2004, Stephanie's mother, Linda Lessard, met with representatives of the School District to map out Stephanie's IEP for the coming school year (2004-2005). Between that inaugural meeting and December of the same year, Mrs. Lessard and the IEP team huddled on at least four occasions to discuss the IEP, but progress was slow. In the interim, the School District continued to implement Stephanie's 2003-2004 IEP.

Of particular pertinence for present purposes is the meeting that took place on August 16, 2004. On her own initiative, Mrs. Lessard brought a psycholinguist (Dr. Kemper) to the meeting. He explained to the assemblage why the Lindamood-Bell Phoneme Processing System (LiPS) was in his view the most effective way to teach literacy to a child with learning disabilities as pronounced as Stephanie's. The IEP team declined to adopt that view, noting that none of those assembled was schooled in that particular pedagogical methodology. The team nonetheless agreed to look into the matter.

At the same meeting, the School District gave Mrs. Lessard a proposed IEP for the upcoming school year and requested that she sign it. The IEP did not contain a component specifically addressing the correction of Stephanie's behavioral problems; that component was under ongoing review by personnel at Crotched Mountain. Curiously, a one-page "transition plan" (the last page of the IEP) ended abruptly in mid-sentence.

Lessard refused to sign the proffered IEP.2 After the meeting, the School District sent her a letter requesting that she make clear what portions of the IEP engendered dissatisfaction. The School District also offered to schedule additional meetings to discuss and perhaps reshape the IEP. The Lessards kept their own counsel and did not communicate their specific objections to the IEP.

Another meeting took place in October. It soon became apparent that a schism existed: whereas the School District envisioned the task at hand to be putting the finishing touches on the proffered IEP, Mrs. Lessard envisioned the IEP process as in its infancy. Yet, despite her evident displeasure, Mrs. Lessard again declined to chronicle any specific criticisms of the IEP as it stood. After the October meeting, the School District again requested by letter that Mrs. Lessard delineate in writing her objections to the proffered IEP. No such delineation ensued.

Persistent scheduling conflicts prevented the protagonists from reconvening until December 2. At that time, the School District presented a new version of the IEP, which contained both the now-vetted behavioral plan as well as a full-blown transition plan (that is, a plan designed to transition the disabled child into independent, adult life). Mrs. Lessard refused to sign the December IEP, complaining that the team had yet to "develop[]" the IEP. This reaction prompted the School District to invoke its right to a due process hearing, see N.H.Code Admin. R. Ann. Ed. 1125.05(c) (2007), as a means of determining the suitability of the recently submitted IEP.

That hearing took place over two days, during which eight members of the IEP team testified on behalf of the School District. In rebuttal, the parents introduced the expert testimony of a reading specialist and a physical therapist; another literacy expert (Dr. Kemper) testified solely through the medium of written findings. In a decision dated March 22, 2005, the state hearing officer ruled that the December IEP suffered from neither procedural nor substantive faults. He therefore ordered it placed into effect and denied the parents' cross-petition for compensatory education and other relief.

The Lessards rejoined by filing an action in the United States District Court for the District of New Hampshire. See 20 U.S.C. § 1415(i)(2). Their suit raised the same procedural and substantive objections that had been advanced in the due process hearing and sought compensatory education for the alleged deprivation of the free appropriate public education (FAPE) owed to Stephanie Lessard under the IDEA. The suit added a claim that the administrative hearing, as conducted, violated the Lessards' procedural due process rights.

In the court case, Mrs. Lessard — who had declined to testify before the state hearing officer — took the witness stand; otherwise, the evidence before the district court largely replicated the evidence in the administrative record. The district court found no fault with the conduct of the administrative hearing, upheld the hearing officer's findings and conclusions, and denied the Lessards' requests for relief. See Lessard, 2007 WL 1221103, at *11.

The Lessards, qua appellants, prosecuted this timely appeal. Before us, they do not challenge the district court's resolution of their procedural due process claim. They do, however, press the other objections that were raised below.

II. THE STATUTORY SCHEME

The IDEA declares that, as a condition for receiving federal funds, states must provide all disabled children with a FAPE. See 20 U.S.C. §§ 1401(8), 1412(a)(1)(A). The primary vehicle for delivery of a FAPE is the child's IEP. The IEP must include, at a bare minimum, the child's present level of educational attainment, the short- and long-term goals for his or her education, objective criteria with which to measure progress toward those goals, and the specific services to be offered. See id. § 1414(d)(1)(A); Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1st Cir.1993).

An IEP is subject to both procedural and substantive requirements. Those requirements can flow from either federal or state law (at least to the extent that the latter is not incompatible with the former). See Roland M. v. Concord Sch. Comm., 910 F.2d 983, 987 (1st Cir.1990).

As an example of a federally-imposed procedural requirement, the IDEA specifically confers upon parents a right to be part of the "IEP team," that is, the group of individuals charged with formulating a particular child's IEP and which comprises educational professionals who either possess specialized knowledge about or will be involved in the child's education. See 20 U.S.C. § 1414(d)(1)(B). An example of a state-imposed procedural requirement is the New Hampshire regulation stipulating that parents must annually consent to and sign their child's IEP. See N.H.Code Admin. R. Ann. Ed. 1125.04(a)(3) (2007); cf. 20 U.S.C. § 1415(b)(3) (imposing the lesser requirement that the school district give notice to the parents of proposed changes to an extant IEP). Federal and state law converge in demanding that an IEP be in effect by the commencement of the school year. See 20 U.S.C. § 1414(d)(2)(A); 34 C.F.R. § 300.342(a) (2000); N.H.Code Admin. R. Ann. Ed. 1109.08(c) (2007).

There is no mechanical checklist by which an inquiring court can determine the proper content of an IEP; "IEPs are by their very nature idiosyncratic." Me. Sch. Admin. Dist. No. 35 v. Mr. & Mrs. R., 321 F.3d 9, 20 (1st Cir.2003). One thing is clear: the substance of an IEP must be something different than the normal school curriculum and something more than a generic, one-size-fits-all program for children with special needs. In the Supreme Court's phrase, an IEP must be "individually designed to provide educational benefit to [a particular] handicapped child." Hendrick Hudson Bd. of Educ. v. Rowley, 458 U.S. 176, 201, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982).

It is worth emphasizing that the obligation to devise a custom-tailored IEP does not imply that a disabled child is entitled to the maximum educational benefit possible. See id. at 206-08, 102 S.Ct. 3034; C.G. v. Five Town...

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