Mr. Individually J. v. Portland Pub. Sch.

• Decision Date: 12 October 2016
• Docket Number: No. 2:15-cv-00084-DBH,2:15-cv-00084-DBH
• Parties: MRS. J. and MR. J., individually and as parents and legal guardians of I.J., a minor, Plaintiffs v. PORTLAND PUBLIC SCHOOLS, Defendant
• Court: U.S. District Court — District of Maine

MRS. J. and MR. J., individually and as parentsand legal guardians of I.J., a minor, Plaintiffs v. PORTLAND PUBLIC SCHOOLS, Defendant

No. 2:15-cv-00084-DBH

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

October 12, 2016

RECOMMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW

Mr. and Mrs. J., parents of student I.J. ("Parents"), challenge the adequacy of the remedy awarded by a Maine Department of Education ("MDOE") hearing officer pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., and its state-law analogue, 20-A M.R.S.A. § 7001 et seq., for a failure by defendant Portland Public Schools ("Portland") to provide I.J. with a free appropriate public education ("FAPE") during her fifth-grade year. See Plaintiffs' Memorandum of Law ("Parents' Brief") (ECF No. 29) at 1, 15-21. They also challenge the hearing officer's conclusions that Portland offered I.J. an appropriate seventh-grade placement at Lyman Moore Middle School ("LMMS") and did not impermissibly predetermine that placement. See id. at 1, 21-33.

For the denial of a FAPE to I.J. in fifth grade, the Parents seek the remedy of further educational instruction at Margaret Murphy Center for Children ("MMCC") or such other remedy as the court feels is appropriate. See id. at 21. With respect to the assertedly inappropriate seventh- grade placement in public school, they ask that Portland be ordered to continue I.J.'s placement at MMCC. See id. at 33.

Portland asks that the court decline to disturb the hearing officer's award of specific compensatory educational services on account of the denial of a FAPE to I.J. in fifth grade and conclude, as did the hearing officer, that the offer of placement at LMMS in seventh grade was appropriate and not predetermined. See Defendant Portland Public Schools' Memorandum of Law ("Portland's Brief") (ECF No. 32) at 1, 35.

After careful review of the administrative record, I recommend that the court adopt the following findings of fact and conclusions of law, denying the requested relief on the bases that, (i) although the remedy ordered by the hearing officer for the fifth-grade denial of a FAPE to I.J. was inadequate, the Parents have not demonstrated a need for additional relief in view of I.J.'s continued placement at MMCC pursuant to the IDEA's "stay put" provision, and (ii) Portland offered I.J. an appropriate seventh-grade placement at LMMS that was not the product of predetermination.

I. Applicable Legal Standards

A. IDEA: Overview

1. The IDEA is a "comprehensive statutory scheme" that Congress enacted to ensure that all children with disabilities are accorded a FAPE and that both their rights and those of their parents are protected. 20 U.S.C. § 1400(d)(1)(A)-(B); Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 58 (1st Cir. 2002). A child with a disability is a child:

(i) with intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to in this chapter as "emotional disturbance"), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and

(ii) who, by reason thereof, needs special education and related services.

Mr. & Mrs. Doe v. Cape Elizabeth Sch. Dist., ___ F.3d ___, No. 15-1155, 2016 WL 4151377, at *1-*2 (1st Cir. Aug. 5, 2016) (quoting 20 U.S.C. § 1401(3)(A)).

2. As a condition of receiving federal funds, states are required to provide a FAPE to all disabled children between the ages of three and 21. See, e.g., Ms. S. v. Regional Sch. Unit 72, 829 F.3d 95, 113 (1st Cir. 2016); Lessard v. Wilton-Lyndeborough Coop. Sch. Dist., 518 F.3d 18, 23 (1st Cir. 2008). In order to provide a FAPE, a school must create and then follow an "individualized education program" ("IEP") for each disabled child. D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012). "To ensure that this takes place, a school district must take steps to identify children who may qualify as disabled, evaluate each such child to determine his or her eligibility for statutory benefits, and develop a customized IEP designed to ensure that the child receives a level of educational benefits commensurate with a FAPE." Ms. S., 829 F.3d at 113-14 (citation and internal quotation marks omitted). "The IDEA also mandates that, to the maximum extent appropriate, a school district's special education accommodations should take place in the least restrictive environment available." Id. at 114 (citation and internal punctuation omitted).

3. "The IEP is the centerpiece of the IDEA's education delivery system for disabled children." Id. (citation and internal punctuation omitted). The IEP is "a written statement for each child with a disability that is developed, reviewed, and revised" in accordance with the IDEA and must include, among other things, the following: a statement of the child's present levels of academic achievement and functional performance; a statement of measurable annual goals; criteria for measuring progress toward those goals; and a statement of the specific services that the school will offer. 20 U.S.C. § 1414(d)(1)(A). "A customized IEP must include, at a bare minimum, the child's present level of educational attainment, the short- and long-term goals forhis or her education, objective criteria with which to measure progress toward those goals, and the specific services to be offered." Ms. S., 829 F.3d at 114 (citation and internal quotation marks omitted). "An IEP therefore must target all of a child's special needs, including a child's social limitations." Id. (citations and internal quotation marks omitted) (emphasis in original). "However, the IDEA does not promise perfect solutions, and the obligation to devise a custom-tailored IEP does not imply that a disabled child is entitled to the maximum educational benefit possible." Id. (citations and internal punctuation omitted). "We therefore review an IEP's compliance with the IDEA based on whether the IEP is reasonably calculated to confer a meaningful education benefit." Id. (citation and internal quotation marks omitted).

4. The IDEA imposes additional procedural and substantive requirements with regard to the IEP. See, e.g., Roland M. v. Concord Sch. Comm., 910 F.2d 983, 987-88 (1st Cir. 1990). For example, parents have the right to be part of the IEP "team" along with the teachers and other educational professionals charged with formulating a child's particular IEP. 20 U.S.C. § 1414(d)(1)(B); Lessard, 518 F.3d at 23. The purpose behind such procedural safeguards is to "guarantee parents both an opportunity for meaningful input into all decisions affecting their child's education and the right to seek review of any decisions they think inappropriate." Pihl v. Massachusetts Dep't of Educ., 9 F.3d 184, 187 (1st Cir. 1993) (citation and internal quotation marks omitted). Thus, in the event of a dispute between the school and the child's parents regarding the IEP, the parents have the right to demand a hearing by an impartial hearing officer. See, e.g., 20 U.S.C. § 1415(f)(1)(A), (B)(ii). A party dissatisfied with a hearing officer's decision may seek judicial review of that decision by a state court or a federal district court, which must (i) receive the records of the administrative proceedings; (ii) hear additional evidence at the requestof a party; and (iii) grant relief as it deems appropriate based upon the preponderance of the evidence. See, e.g., id. § 1415(i)(2)(A), (C).

5. A court's authority to grant relief under the IDEA "includes the power to order school authorities to reimburse parents for their expenditures on private school education for a child if the court ultimately determines that such placement, rather than a proposed IEP, is proper under the Act." Pihl, 9 F.3d at 188 (citation and internal quotation marks omitted).

B. Standard and Scope of Review

6. "Judicial review of administrative decisions in IDEA cases requires a more critical appraisal than clear-error review, but nevertheless falls well short of complete de novo review." Cape Elizabeth, 2016 WL 4151377, at *8 (citation and internal punctuation omitted). "In the course of this involved oversight, a court must make 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." Id. (citations and internal quotation marks omitted). "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 left to the discretion of the trial court." Hampton Sch. Dist. v. Dobrowolski, 976 F.2d 48, 52 (1st Cir. 1992) (citations and internal quotation marks omitted).

7. The First Circuit and other courts have suggested that with respect to a hearing officer's legal conclusions, the level of deference due depends on whether the court is equally well-suited to make the determination despite its lack of educational expertise. See, e.g., Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 849 (6th Cir. 2004) ("Less weight is due to an agency's determinations on matters for which educational expertise is not relevant because a federal court is just as well suited to evaluate the situation. More weight, however, is due to anagency's determinations on matters for which educational expertise is relevant.") (citations and internal quotation marks omitted); Abrahamson v. Hershman, 701 F.2d 223, 231 (1st Cir. 1983) (noting that while it might be "inappropriate for a district court under the rubric of statutory construction to impose a particular educational methodology upon a state[,]" court was free to construe term "educational" in IDEA "so as to insure, at least, that the state IEP provides the hope of educational benefit.")....