United States Court of Appeals
For the First Circuit
No. 03-2035
MS. M., as parent and next friend of K.M., a minor,
Plaintiff, Appellant,
v.
PORTLAND SCHOOL COMMITTEE,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Richard L. O'Meara, with whom Amy N. Sneirson and Murray,
Plumb & Murray were on brief, for appellant.
Eric R. Herlan, with whom James C. Schwellenbach and Drummond
Woodsum & MacMahon were on brief, for appellee.
March 9, 2004
LYNCH, Circuit Judge. Ms. M., the parent of K.M.,
brought suit seeking reimbursement from the Portland, Maine school
district for K.M.'s sixth grade tuition for the 2001-2002 school
year at the Aucocisco School, a private school. She claims that
the Portland school district provided K.M., who suffers from
Attention Deficit Hyperactivity Disorder (ADHD), with an inadequate
sixth grade Individualized Educational Plan (IEP) under the
Individuals with Disabilities in Education Act (IDEA), 20 U.S.C. §
1400 et seq. Ms. M., in a second argument, also seeks to re-
characterize her tuition reimbursement claim as one for
compensatory education for the allegedly deficient educational
services provided to her son under the IEPs during his fourth and
fifth grade years at the Longfellow School, a public elementary
school in the Portland school district.
Parents who unilaterally remove their child from public
school because they believe that the special education services
provided for the child are inadequate are entitled to tuition
reimbursement for the costs of the private school placement under
some circumstances. Under the 1997 Amendments to IDEA, such
parents generally should give prior notice to the school system of
their rejection of the proposed IEP and their intent to enroll
their child in a private school at public expense, or, failing
that, must meet one of the four exceptions to the notice
requirement. 20 U.S.C. § 1412(a)(10)(C)(iii) & (iv). Here, the
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notice requirement was not met, but Ms. M. claims that she falls
within two different exceptions -- one involving illiterate parents
and the other involving the school system's failure to meet its own
notice obligations. Id. § 1412(a)(10)(C)(iv)(I) & (IV). The due
process hearing officer found as a matter of fact that Ms. M. did
not come within either exception and so denied the claim for
tuition reimbursement. The hearing officer did allow her to
receive reimbursement for the costs of an evaluation and tutoring
during K.M.'s fifth grade year; those costs are not at issue. On
appeal by Ms. M. from the hearing officer's adverse tuition
reimbursement holding, the district court agreed with the hearing
officer that she was not entitled to tuition reimbursement because
she had failed to give notice and that failure was not excused. We
too agree and affirm.
I.
The facts, which are largely undisputed, are taken from
the district court's opinion and supplemented from the record.
In 1995, Ms. M. enrolled her son, K.M., at Longfellow
School. K.M. had completed his kindergarten year at his previous
school, but repeated it at Longfellow because he exhibited
significant speech, language, and attentional deficits. In his
second year at Longfellow, while he was in first grade, K.M.'s
teacher became concerned that K.M. was still making inadequate
progress and referred him to a pupil evaluation team (PET). That
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team consisted of K.M.'s mother and grandparents, K.M.'s teacher,
the principal of Longfellow school, a psychological examiner, a
special educator, and a speech therapist. The PET identified a
large gap between K.M.'s intellectual abilities and his academic
performance and concluded that K.M. suffered from a learning
disability and was eligible for special education services.
The PET developed an IEP for K.M.'s second grade year,
which provided for K.M. to be taught in a regular classroom and to
receive eight hours a week of supplemental special education
services. Over the course of the next few years, the PET gradually
increased the amount of special education services that K.M.
received: his third grade IEP provided for eleven hours of special
education support a week, his fourth grade IEP for fourteen hours
a week, and his fifth grade IEP for nineteen hours a week.
Despite the school's focus on his learning problems, K.M.
continued to struggle academically throughout his time at
Longfellow. In third grade, a learning strategist observing K.M.
in the classroom noted that K.M. had difficulty with reading skills
and needed direct instruction. His tutor concluded that, at the
end of third grade, K.M.'s reading "comprehension was greatly
limited" and K.M. was "an initial [stage] reader." At the start of
K.M.'s fourth grade year, the school determined that K.M.'s reading
and writing skills remained only at first and second grade levels.
It also found that K.M. had delayed language and phonological
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processing skills. Later that year, K.M. failed to meet three of
the five benchmarks on a Maine standardized test, and only
partially met the other two.
In November of 2000, during K.M.'s fifth grade year, Ms.
M. and her brother, Tom L., presented the PET with a written
statement of concerns about K.M.'s progress; Ms. M. was assisted by
her brother because she suffers from a learning disability similar
to her son's. Following the meeting, Ms. M. obtained the
assistance of Donna Verhoeven, an educational advocate with the
Disabilities Rights Center in Maine, who supplemented Ms. M.'s
earlier list of concerns with a written request for a publicly
funded independent evaluation of K.M. The PET reconvened in
January 2001, and again in February, to discuss Ms. M.'s concerns.
The PET, which included Ms. M., Tom L., and Donna Verhoeven,
decided to increase K.M.'s special education services to over
twenty hours a week, provide him with homework assistance at 8 a.m.
(before school started), and start planning educational services
for K.M. over the summer. The team also agreed to have K.M.
independently tested by Dr. Slap-Shelton, a psychologist, as Ms. M.
had requested. Finally, the PET briefly discussed the educational
services that would be provided to K.M. in his sixth grade year.
On May 1, 2001, Ms. M. completed an application to enroll
K.M. at Aucocisco, a private school for learning disabled children.
About one week later, Ms. M., along with Tom L. and Donna
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Verhoeven, attended a PET meeting at Longfellow. At the meeting,
Dr. Slap-Shelton presented her evaluation of K.M. She explained
that K.M. suffered from dyslexia and "soft signs" of ADHD and made
numerous recommendations for improving K.M.'s IEP. After lengthy
discussion of Dr. Slap-Shelton's conclusions, the PET agreed on six
goals for K.M.'s upcoming sixth grade year. At no time in this
period did the plaintiff notify the school system that she was
considering a private placement. Nor did she disagree with the
PET's work to date.
The group met again on June 13 and, after lengthy
discussion, finalized the details of K.M.'s sixth grade program.
Once again, Ms. M. did not indicate to any other members of the PET
that she was considering removing K.M. from public school. Ms. M.
expressed some concerns about the proposed IEP plan, but she
neither approved nor rejected it. Rather, she indicated her desire
to continue discussions about improving the IEP. The other PET
members agreed to reconvene in early September. Nonetheless,
action was taken over the summer. Barbara Dee, the school's
director of special education, testified that she contacted Ms. M.
in July to schedule a date for a summer PET meeting and Ms. M. said
that, while she was willing to meet in the summer, she needed to
check with her brother and advocate about a date and would call Dee
back. Ms. M. never called back. In August, not having heard from
Ms. M., Dee again called to schedule a PET meeting, this time
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leaving a message on Ms. M.'s answering machine with several
possible dates over the summer. Again, Ms. M. did not return the
call. Ms. M. disputes that there was an offer for a PET meeting,
but her lack of memory does not make the district court's contrary
findings clearly erroneous.
On July 2, Portland sent Ms. M. the minutes of the June
PET meeting and the proposed IEP for K.M.'s sixth grade year. Ms.
M. concluded that the proposed IEP was inadequate and decided
unilaterally to enroll K.M. in Aucocisco. But she did not notify
the school system of her disagreement. By August 17, Ms. M. had
made the initial deposit to Aucocisco for tuition. She did not
inform any Longfellow school official of her choice.
In a handwritten letter dated September 11, 2001, Ms. M.
informed the school that she found the IEP unsatisfactory, that
K.M. was attending the Aucocisco school, and that no more PET
meetings would be necessary. This was the first time that anyone
in the Portland public school system became aware that Ms. M. was
removing K.M. from public school, and the first notice to Portland
of outright rejection of the IEP.
On November 20, 2001, Ms. M. informed the Portland school
district that she intended to seek reimbursement for K.M.'s
Aucocisco tuition. Over the period of the next few months, Ms. M.
met with the other PET members several times to determine whether
they could agree on an IEP that would provide K.M. with a suitable
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education in public school. Ms. M. and the school district were
unable to reach an agreement on the matter, and on March 13, 2001,
the school district requested a due process hearing, 20 U.S.C. §
1415 and Me. Rev. Stat. Ann. tit. 20-A, § 7207-B, arguing, inter
alia, that it was not responsible for K.M.'s tuition at Aucocisco.
Ms. M. responded that the school district had failed to provide
K.M. with a free appropriate public education (FAPE), and was
responsible not just for his tuition at Aucocisco, but also for
compensatory education stemming from alleged deficiencies in K.M.'s
fourth and fifth grade education.
On June 10, 2002, after hearing testimony from twelve
witnesses, the hearing officer denied Ms. M. tuition reimbursement.
She reasoned that under 20 U.S.C. § 1412(a)(10)(C)(iii), Ms. M. did
not provide the school district with sufficient notice of her
intent to remove K.M. from public school.1 She also found that Ms.
M. did not fit within any of the exceptions to the statute's notice
provision. 20 U.S.C. § 1412(a)(10)(C)(iv). Ms. M., she concluded,
was not illiterate within the meaning of the statute and had been
provided with adequate notice of her own obligation to provide
prior notice before removing K.M. from public school. The hearing
officer did, however, grant Ms. M. compensation for the costs of
1
The hearing officer also found that the IEP proposed for
K.M.'s sixth grade year was reasonably calculated to provide K.M.
with FAPE. Because we decide the reimbursement issue on the ground
of insufficient notice, we do not review this holding.
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the evaluation performed by Dr. Slap-Shelton and for the costs of
certain tutoring services provided to K.M. in fifth grade.
II.
Ms. M. brought suit in Maine Superior Court challenging
the hearing officer's decision, 20 U.S.C. § 1415(i)(2)(A) and Me.
Rev. Stat. Ann. tit. 20-A, § 7207-B(2)(B), and the school district
removed the case to federal court, 28 U.S.C. § 1441(b). The
district court affirmed the hearing officer's decision, adopting
the magistrate judge's recommended findings of fact and conclusions
of law. The district court opinion rejected the argument that the
hearing officer had erred in concluding that Ms. M. did not fit
within any of the exceptions to the notice requirement.2 It found
that the hearing officer was correct that Ms. M. was not illiterate
and had received a procedural-safeguards notice from the school
explaining IDEA's notice requirement. The district court opinion
also rejected Ms. M.'s claim for tuition reimbursement as a form of
compensatory education for K.M.'s allegedly deficient fourth and
fifth grade education.3
2
The opinion also rejected Ms. M.'s argument that the hearing
officer had erred in evaluating the IEP as it stood in February
2002 rather than June 2001 and found that, in any case, that
distinction was irrelevant because both IEPs provided K.M. with
FAPE. We do not address either of these conclusions.
3
The district court held that compensatory education was not
available to Ms. M. because her claim depended on challenging the
content of K.M.'s fourth and fifth grade IEPs, rather than the
implementation of those IEPs.
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III.
In 1997, Congress significantly amended IDEA and, in the
process, clarified the circumstances in which parents who
unilaterally remove their children from private school may receive
tuition reimbursement. Pub. L. No. 105-17, 111 Stat. 37 (1997).
That amendment is discussed in our recent opinion Greenland Sch.
Dist. v. Amy N., Nos. 03-1668, 03-1697, 2004 U.S. App. LEXIS 3237
(1st Cir. Feb. 23, 2004). As part of those amendments, Congress
provided that:
The cost of reimbursement . . . may be reduced or
denied [] (I) if (aa) at the most recent IEP
meeting that the parents attended prior to removal
of the child from the public school, the parents
did not inform the IEP Team that they were
rejecting the placement proposed by the public
agency to provide a free appropriate public
education to their child, including stating their
concerns and their intent to enroll their child in
a private school at public expense; or (bb) 10
business days (including any holidays that occur on
a business day) prior to the removal of the child
from the public school, the parents did not give
written notice to the public agency of the
information described in division (aa).
20 U.S.C. § 1412(a)(10)(C)(iii); Rafferty v. Cranston Pub. Sch.
Comm., 315 F.3d 21, 27 (1st Cir. 2002).
There is no dispute that Ms. M. did not satisfy this
notice requirement and that, under normal circumstances, the
hearing officer would by statute be entitled to deny the equitable
remedy of tuition reimbursement. See Rafferty, 315 F.3d at 27;
Greenland, 2004 U.S. App. LEXIS 3237, at *23-*32. Ms. M. argues,
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however, that the notice requirement was not applicable here
because she fits within both the illiteracy exception and the
exception for the school district's failure to provide § 1415
notice:
Notwithstanding the notice requirement in clause
(iii)(I), the cost of reimbursement may not be
reduced or denied for failure to provide such
notice if -- (I) the parent is illiterate and
cannot write in English . . . or (IV) the parents
had not received notice, pursuant to [20 U.S.C. §
1415], of the notice requirement in clause
(iii)(I).
20 U.S.C. § 1412(a)(10)(C)(iv).
Starting with the illiteracy exception, Ms. M. argues
that the district court erred in relying on several letters that
she wrote to the PET because those letters only demonstrated "the
mere capability to copy words and sentences composed by another
person." She argues that the evidence established that she reads
only at a third grade level and was only able to write the letters
sent to the PET by copying into her own handwriting letters
composed by someone else.
Although Ms. M. frames her argument as a question of law,
her objection is fundamentally to the factual determination that
she is not illiterate. Neither the hearing officer nor the
district court concluded as a matter of law that an individual with
no understanding of written words who can merely copy an existing
document is literate under § 1412(a)(10)(C)(iv). Instead, the
district court merely held that while Ms. M. may have difficulty
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reading and writing, the hearing officer correctly determined as a
factual matter that she was not illiterate. Because this is a
factual determination, our review is for clear error on the record
as a whole. Gonzalez v. P.R. Dep't of Educ., 254 F.3d 350, 352
(1st Cir. 2001); Kathleen H. v. Mass. Dep't of Educ., 154 F.3d 8,
13 (1st Cir. 1998).
It was not clearly erroneous for the district court to
conclude that Ms. M. is not illiterate. The district court's
holding did not rest alone on the letters that Ms. M. signed. Ms.
M. is a high school graduate, and while K.M.'s teachers knew that
she had difficulty writing, they had "no indication that she was
unable to read." Ms. M. also completed the written application to
Aucocisco, which the hearing officer concluded "containe[d] well-
formed words and language that is clear, despite some grammatical
errors." Finally, when Ms. M. enrolled K.M. in kindergarten, she
filled out a school questionnaire in her own handwriting in which
she indicated that she read stories to K.M.
As to the second exception for parents who have not been
informed of IDEA's prior notice requirement pursuant to 20 U.S.C.
§ 1415(d), there was no error. Ms. M. admits that she received
notices of her procedural obligations during the months preceding
the June 2001 PET meeting, but she says the school system failed to
establish that those notices complied with the 1997 Amendments to
IDEA and were not earlier versions of the school's standard forms.
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Though the precise forms were not put in evidence, there was
testimony that the standard forms were updated by November 2000.
This was well before Ms. M. received her final procedural-
safeguards notice: Ms. M. said that she had received procedural-
safeguards notices for "most of the PETs during K.M.'s fifth grade
year." One of those meetings was on May 9, 2001, and another on
July 13, 2001.
Stressing that the language of the statute permits some
discretion as to tuition reimbursement even in the absence of
notice by parents whose children are receiving special education in
public schools, Ms. M. argues that the decision to deny her tuition
reimbursement was unfair because she made at most an "innocent
mistake." Even before the 1997 Amendments, parents who acted
unilaterally did so at their own financial risk. Burlington Sch.
Comm. v. Dep't of Educ. of Mass., 471 U.S. 359, 373-74 (1985). The
1997 Amendments tightened up the circumstances under which
reimbursement was to be allowed. See Greenland, 2004 U.S. App.
LEXIS 3237, at *24-*26. There was no abuse of discretion. The
evidence established that Ms. M. failed to return two different
phone calls by Barbara Dee in which Dee was attempting to set up
meetings during the summer. Rather than return these calls and
explain her intent to remove K.M. from private school, Ms. M.
removed K.M. without notifying the school and giving it an
opportunity to respond. She had the assistance of an advocate who
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knew the field, as well as her brother. The equities on the notice
issue do not favor Ms. M.
In a final effort to avoid the consequences of failing to
follow IDEA's prior notice requirement, Ms. M. refashions her claim
for tuition reimbursement as a claim for compensatory education
stemming from the allegedly deficient education that K.M. received
in fourth and fifth grade.4 But her attempt to circumvent the
statutory notice requirement for tuition reimbursement fails. The
facts of this case bring it directly within the terms of the
limitation on reimbursement contained in the 1997 Amendments.
Given that Congress has imposed statutory restrictions on the
equitable remedy of tuition reimbursement that are directly
applicable here, allowing Ms. M. to pursue a compensatory education
claim for tuition reimbursement would undercut the statute.
Moreover, when this court has used the term "compensatory
education," it has usually assumed that the remedies available
involve prospective injunctive relief, which would not encompass
tuition reimbursement. See, e.g., Me. Sch. Admin. Dist. No. 35 v.
R., 321 F.3d 9, 18 (1st Cir. 2003) (compensatory education entitles
recipient "to further services, in compensation for past
4
The hearing officer in this case did, in fact, find that Ms.
M. was entitled to compensation for certain deficiencies in K.M.'s
fifth grade IEP, and ordered the school to reimburse Ms. M. for the
costs of private tutoring K.M. received and that should have been
provided for free by the school. The school district does not
appeal this holding.
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deprivations, even after his or her eligibility [for special
education services under IDEA] has expired"); Pihl v. Mass. Dep't
of Educ., 9 F.3d 184, 188 (1st Cir. 1993); see also G. v. Fort
Bragg Dependent Schs., 343 F.3d 295, 309 (4th Cir. 2003)
("Compensatory education involves discretionary, prospective,
injunctive relief . . . .").
Given our holding that tuition reimbursement, the only
remedy Ms. M. seeks, is not available here as a form of
compensatory education, we need not determine when claims of
compensatory education are generally cognizable.5
IV.
The judgment of the district court is affirmed. No costs
are awarded.
5
At least one court has held that the compensatory education
remedy is limited to challenges to the implementation of the IEP --
such as when the school system fails to provide the services set
forth therein -- and does not apply to a second category of claims
challenging the content of past IEPs. See Rome Sch. Comm. v. Mrs.
B., No. 99-CV-20-B, 2000 U.S. Dist. LEXIS 2949, at *39 (D. Me. Mar.
8, 2000). Ms. M.'s claim is not that Portland failed to provide
the services specified in the fourth and fifth grade IEPs, or that
it otherwise failed to implement those IEPs appropriately. Rather
the claim appears to fit in the second category -- that the results
of the IEPs were unsatisfactory because their content was somehow
flawed. We do not decide the point.
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