Mr. I. Ex Rel. L.I. v. Maine School Administrative District No. 55

United States Court of Appeals
For the First Circuit

Nos. 06-1368 and 06-1422

MR. I., AS PARENT AND NEXT FRIEND OF L.I., A MINOR;
MRS. I., AS PARENT AND NEXT FRIEND OF L.I., A MINOR,

Plaintiffs, Appellees/Cross-Appellants,

v.

MAINE SCHOOL ADMINISTRATIVE DISTRICT NO. 55,

Defendant, Appellant/Cross-Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Torruella, Circuit Judge,

Cyr, Senior Circuit Judge,

and Howard, Circuit Judge.

Eric R. Herlan with whom Drummond Woodsum & MacMahon, was on
brief, for appellant/cross appellant.
Richard L. O'Meara with whom Amy M. Sneirson, Staci K.
Converse and Murray, Plumb & Murray, were on brief, for
appellees/cross-appellees.
Diane C. Smith, on brief for amici curiae Autism Society of
Maine, Council of Parent Advocates and Attorneys, Disability Rights
Center, and National Disability Rights Network.
 Brendan P. Rielly and Jensen Baird Gardner & Henry, on brief
for amici curiae Maine School Management Association, Maine
Education Association, Maine Administrators of Services for
Children with Disabilities, and Maine Principals' Association.
Frank D'Alessandro and Kids Legal at Pine Tree Legal
Assistance, on brief for amici curiae Asperger's Association of New
England.

March 5, 2007

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 HOWARD, Circuit Judge. This case presents an issue of

eligibility for benefits under the Individuals with Disabilities

Education Act, 20 U.S.C. § 1400 et seq. (Supp. 2006) (the "IDEA").

We have previously noted that such issues can require a "difficult

and sensitive" analysis. Greenland Sch. Dist. v. Amy N., 358 F.3d

150, 162 (1st Cir. 2004) (not reaching the eligibility question).

This case is no exception. The appellant, Maine School

Administrative District No. 55 ("the district"), appeals the

district court's determination that the appellees' daughter ("LI")

qualifies as a "child with a disability" eligible for special

education and related services under the IDEA as a result of her

Asperger's Syndrome. The appellees ("Mr. and Mrs. I" or "the

parents") cross-appeal the district court's rulings that (1) even

though LI was entitled to IDEA services, her parents were not

entitled to reimbursement of their expenses in unilaterally placing

LI in a private school following the district's refusal to provide

those services and (2) the district would not be separately ordered

to provide compensatory education services to reverse the effects

of that decision on LI's progress. We affirm the judgment of the

district court.

I.

We begin with an overview of the statutory framework.

The IDEA provides funding to each state "to assist [it] to provide

special education and related services to children with

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disabilities," 20 U.S.C. § 1411(a)(1), provided that "[a] free

appropriate public education is available to all children with

disabilities residing in the state . . . ." Id. § 1412(a)(1)(A).

In this sense, a "free appropriate public education" encompasses

"special education and related services," id. § 1401(9), including

"specially designed instruction, at no cost to parents, to meet the

unique needs of a child with a disability . . . ." Id. § 1401(29).

To receive special education and related services under

the IDEA, a child must qualify as a "child with a disability." In

relevant part, a "child with a disability" is a child

(i) with mental retardation, 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.

Id. § 1401(3)(A). The Secretary of Education has promulgated a

regulation defining each of the categories of disability set forth

in § 1401(3)(A)(i). Those definitions, so far as they are relevant

here, require that each of the enumerated conditions "adversely

affect[] a child's educational performance" to constitute a

disability. 34 C.F.R. §§ 300.8(c)(1)(i) (2006) (autism), (c)(4)(i)

(emotional disturbance), (c)(9)(ii) (other health impairment).1

1
Although this regulation was amended during the pendency of
this appeal, none of the amendments affects our analysis. See

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 The IDEA places the burden of identifying children with

disabilities upon each state. 20 U.S.C. § 1412(a)(3)(A). In

deciding whether a particular student has a disability under the

IDEA, Maine uses a "pupil evaluation team," or "PET," 05-071-101

Me. Code. R. § 9.4 (2006), consisting of the student's parents, a

representative from the school district, and a number of

educational and other professionals. Id. § 8.6; see also 20 U.S.C.

§ 1414(d)(1)(B). Though the members of the PET attempt to achieve

consensus on this issue, the school district retains the "ultimate

responsibility to ensure that a student is appropriately evaluated"

for IDEA eligibility. 05-071-101 Me. Code. R. § 8.11(C).

The parents of a child deemed ineligible for IDEA

benefits can challenge that determination before an impartial

hearing officer. 20 U.S.C. §§ 1415(b)(6), (f)(1)(A), (f)(3)(A).

After the hearing, the officer issues a final administrative

decision, accompanied by findings of fact. Id. §§ 1415(h)(4),

(i)(1)(A). Any party aggrieved by the decision can then file a

civil action in federal district court. Id. § 1415(i)(2)(A). Then

the "trial court must make an independent ruling based on the

preponderance of the evidence, but the Act contemplates that the

source of that evidence generally will be the administrative

generally Assistance to States for the Education of Children With
Disabilities and Preschool Grants for Children with Disabilities,
71 Fed. Reg. 46,540 (Aug. 14, 2006) (codified at 34 C.F.R. pt.
300). For ease of reference, then, we cite to the current version
of the regulation throughout.

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hearing record, with some supplementation at trial." Town of

Burlington v. Dep't of Educ., 736 F.2d 773, 790 (1st Cir. 1984),

aff'd sub nom. Sch. Comm. v. Dep't of Educ., 471 U.S. 359 (1986)

("Burlington"); see also 20 U.S.C. § 1415(i)(2)(C).

In keeping with this approach, the district court

referred the case to a magistrate judge for proposed findings and

a recommended disposition, see 28 U.S.C. § 636(b)(1)(B) (2006),

which were made based on the facts adduced at the due process

hearing and supplemental evidence submitted by the parents. The

district court, in the absence of an objection from either side,

accepted the magistrate's proposed findings wholesale. In the

continued absence of any challenge to these factual findings, we

take the same tack.

II.

A.

LI attended Cornish Elementary School in Cornish, Maine,

until 2003. Though she excelled academically, by the fourth grade

she began to experience sadness, anxiety, and difficulty with peer

relationships. These problems persisted into the fifth grade, when

LI sought to distance herself physically from most of her

classmates. Her parents sought psychological counseling for LI and

she started taking a prescription anti-depressant. Her grades also

dropped from "high honors" to "honors." As the school year

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progressed, however, LI became more successful at interacting with

her peers and participating in class.

During the summer recess preceding sixth grade, LI asked

her mother, as she had the previous summer, to allow her to be

home-schooled. LI also expressed her desire to attend The

Community School ("TCS"), a private school in South Tamworth, New

Hampshire, where her older sister had matriculated. Nevertheless,

LI started the 2003-2004 school year at Cornish, where Mrs. I

believed her daughter would benefit, in particular, from her

assigned sixth grade teacher.

By mid-September, however, LI was "slacking off" in her

academic work and regularly missing school, prompting a meeting

between her teacher and Mrs. I. At this meeting, also attended by

LI, Mrs. I noticed cuts or scratches on her daughter's arms; the

teacher offered that LI might have inflicted those wounds on

herself during her "lengthy bathroom breaks" from class. According

to the teacher, LI was also having continued trouble relating with

her peers due to a "serious lack of awareness" of their social and

emotional states, which bordered on "hostility." The teacher added

that she could not "reach" LI, who had refused to complete

assignments and shown a "passive resistance to meeting learning

goals." Yet the teacher considered LI "a very bright young girl

with strong language and math skills . . . capable of powerful

insights in her reading and writing . . . ."

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 The teacher and Mrs. I came up with a "contract" that

would have entitled LI to study more advanced topics in her areas

of interest in November if she satisfactorily completed her

assignments for October. As October approached, however, LI

refused to sign the contract and stayed home from school on both

September 30 and October 1. On October 1, following an argument

with Mrs. I over one of LI's academic assignments, LI deliberately

ingested excessive quantities of one her prescription drugs and two

over-the-counter medications in a suicide attempt.

LI spent the balance of the day in the emergency room at

a nearby hospital and was discharged with instructions to remain

out of school for two days under high safety precautions. The

hospital social worker also directed Mr. and Mrs. I to "share with

[LI] something that would change in her life, and produce a

positive impact on her emotional functioning." Based on LI's

comments to hospital personnel that she hated school, Mr. and Mrs.

I told her that she would not have to return to Cornish Elementary

and discussed enrollment at TCS as an alternative.

In the wake of her attempted suicide, LI met with a new

counselor, who, suspecting that LI might suffer from Asperger's

Syndrome, referred her to Dr. Ellen Popenoe for neuropsychological

testing.2 Mr. and Mrs. I conveyed this information, as well as the

2
"Asperger's disorder is a developmental disability on the
autism spectrum that is associated with significant misperceptions
of otherwise routine elements of daily life. It is a permanent

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news of LI's suicide attempt, to the district's director of special

services, Jim McDevitt. They added that LI would not return to

Cornish Elementary "for the time being" and that they were looking

at other options, including TCS. McDevitt explained the process

for seeking reimbursement from the district for placing LI in a

private school and also told the parents that the district planned

to convene a pupil evaluation team for LI at the end of the month.

At that meeting, the PET decided that LI should receive up to ten

hours of tutoring outside of school each week pending completion of

her neuropsychological testing.

The testing, finished by early November, further

suggested that LI had Asperger's Syndrome, as well as adjustment

disorder with depressed mood.3 Popeneo, the neuropsychologist,

observed that LI "experiences significant limitations in many areas

of adaptive skills" and executive skills, "which likely

contribute[s] to her behavioral and emotional difficulties."4

condition that is not treatable with medication." Greenland, 358
F.3d at 154.
3
Adjustment disorder with depressed mood is characterized by
a psychological response to an identifiable stressor that results
in the development of clinically significant emotional or
behavioral symptoms, i.e., depressed mood, tearfulness, or feelings
of hopelessness. Am. Psychiatric Ass'n, Diagnostic and Statistical
Manual of Mental Disorders 679 (4th ed. 2000) ("DSM-IV").
4
Adaptive skills are those necessary to cope with common life
demands and meet the standards of personal independence appropriate
for one's age, sociocultural background, and community setting.
DSM-IV at 42. Executive skills are those necessary to think
abstractly and to plan, initiate, monitor, and stop complex

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These behavioral difficulties, particularly LI's poor pragmatic

language abilities and restricted range of social interests,

supported a diagnosis of Asperger's. Popeneo recommended that LI

begin seeing both a social skills coach, who would help her develop

social abilities and judgment, and a therapist familiar with

Asperger's, who would use a cognitive-behavioral approach.5

Popeneo also recommended that LI undergo a speech-

language evaluation, which was completed in January 2004 by Amber

Lambke, a speech-language pathologist. Lambke observed that LI

suffered "significant social understanding deficits which impact

her overall emotional and social well-being." Like Popeneo, Lambke

recommended that LI receive direct teaching of social skills.

In the meantime, McDevitt told Mrs. I that he would

attempt to find LI a tutor in accordance with the PET's decision.

Mrs. I had not heard back from him by November 10, however, so she

started home-schooling LI. Despite additional prodding by Mrs. I

in November and December, the district never provided a tutor as

ordered by the PET, nor explained its failure to do so. While LI

preferred home-schooling to attending Cornish Elementary, Mrs. I

behavior. Id. at 149.
5
In general, cognitive-behavioral therapy seeks to identify
the thinking associated with unwanted feelings and behaviors in
order to replace it with thoughts leading to more desirable
reactions. Nat'l Ass'n of Cognitive-Behavioral Therapists,
http://www.nacbt.org/whatiscbt.htm (last visited January 26, 2007).

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was having trouble getting LI to complete her assignments, and her

counselor believed that LI should resume formal schooling.

On January 5, 2004, LI began attending TCS. Although she

was withdrawn and isolated at the outset, over time LI developed

positive relationships with some of her peers. She also thrived

academically, completing assignments at the seventh- and eighth-

grade level with ease. TCS, however, provided LI with neither the

direct teaching of social skills nor the cognitive behavioral

therapy that had been recommended as treatment for her Asperger's.

When the PET reconvened in early March, it accepted

Popenoe's conclusion that LI suffered from both Asperger's and

adjustment disorder with depressed mood. The PET also agreed that

LI needed social skills and pragmatic language instruction. The

PET, however, could not reach consensus on whether LI qualified as

a "child with a disability" under the IDEA. The district's

representatives argued that LI's condition, whether denominated

"autism," "emotional disturbance," or "other health impairment," 20

U.S.C. § 1401(3)(A)(i), had not affected her academic performance

"to a marked degree" or "over a long period of time," which they

deemed essential to IDEA eligibility. The district then issued a

"prior written notice," id. § 1415(b)(3), announcing its refusal to

offer special education services on the stated basis of "no

significant adverse effect on education." The district instead

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asked the PET to consider LI's eligibility for services under the

Rehabilitation Act, 29 U.S.C. § 794 (2000).

At its next meeting, the PET identified LI as a

"qualified individual with a disability" under the Rehabilitation

Act, id. § 794(a), and recommended an array of services. These

included close supervision throughout the school day; instruction

in "social pragmatics"; access to the district's existing gifted

and talented programming as well as additional programming provided

through a consultant to be hired by the district; and placement in

any elementary school within the district. The district also

offered to supply a tutor to work with LI for three hours each day

to ease her eventual transition back to the classroom.

Mr. and Mrs. I objected to this proposal as inadequate

and unduly restrictive, given LI's success in a classroom

environment at TCS and her apprehension over returning to public

school. They wanted LI to remain at TCS for the balance of the

academic year with a view toward beginning her transition back to

public school in September 2004, and notified the district that

they intended to seek reimbursement under the IDEA for LI's

attendance at TCS. LI completed the 2003-2004 academic year at

TCS, and stayed on for the 2004-2005 and 2005-2006 school years as

well. While she has done well academically, she continues to

experience "atypical" peer relationships and spent the summer of

2004 shunning her TCS classmates in favor of solitary pursuits. LI

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also generally refuses to go outdoors or to eat more than a

severely limited variety of foods. Her current social worker

believes that, without social skills coaching, LI is unlikely to

master the flexible thinking, problem solving, teamwork, and

communication abilities she will need for employment in the future.

B.

After the final PET decision, Mr. and Mrs. I requested a

due process hearing to challenge the district's refusal to identify

LI as a child with a disability under the IDEA. The hearing

officer upheld the district's decision that LI was ineligible for

IDEA services. The hearing officer noted the parties' agreement

that LI had Asperger's and a depressive disorder, making her "a

troubled young woman," but further observed that she was not

entitled to IDEA benefits unless these disabilities "'adversely

affect[ed]' [her] educational performance."

The hearing officer recognized that both the IDEA and

Maine's implementing regulations define "educational performance"

to include more than just academic proficiency, but concluded that

the IDEA does not call for services "to address social and

emotional needs when there are no academic needs." Accordingly,

because LI "completes homework independently, is well behaved in

class, is successful at test taking and successfully completes

projects," the hearing officer determined that "neither the [IDEA]

nor the Maine Special Education Regulations require a school

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district to provide special education services to address what is

essentially a mental health issue."

In response, Mr. and Mrs. I commenced an action in the

district court, which, as we have noted, referred the case to a

magistrate judge.6 The magistrate judge determined that the

hearing officer erred in treating LI's lack of academic needs as

dispositive of her IDEA eligibility when the correct standard, he

believed, is whether a disability "manifest[s] itself in an

adverse effect on the child's ability to learn." Nevertheless, the

magistrate judge ruled that LI did not meet this standard because

her condition did not adversely affect her achievements as measured

by any of the criteria Maine uses to define "educational

performance." While the magistrate judge recognized that LI had

fallen short of these benchmarks during the period in the fall of

2003 when she had repeatedly missed school and attempted suicide,

he considered this episode too short-lived "to trigger eligibility

for special-education services."

The district court, however, rejected the magistrate

judge's recommended decision, concluding that LI's "condition did

adversely affect her educational performance as Maine defines that

term and that the events of the fall of 2003 cannot be isolated

6
In addition to seeking review of the hearing officer's
decision under 20 U.S.C. § 1415(i)(2), Mr. and Mrs. I also asserted
a claim for relief under the Rehabilitation Act, which was rejected
by the district court. They have not pursued this claim on appeal.

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from [her] underlying condition." 416 F. Supp. 2d 147, 152 (D. Me.

2006). The district court determined that LI's Asperger's had

exerted an adverse effect on her educational performance as

measured by state criteria, most significantly in the areas of

socialization and communication. The district court also disagreed

with the view that any downturn in LI's educational performance was

too fleeting to constitute an "adverse effect." Reasoning that

neither the Maine regulations defining the disabilities listed in

§ 1401(3)(A)(i) nor their federal counterparts used any restrictive

modifier in conjunction with the term "adversely affects," the

district court ruled that "any negative effect should be

sufficient" to constitute a disability under the IDEA. 416 F.

Supp. 2d at 160 (emphasis added).

Turning to the second prong of the IDEA's eligibility

standard, 20 U.S.C. § 1401(3)(A)(ii), the district court concluded

that LI needed special education and related services by reason of

her disability. First, the district court found that the PET had

agreed to provide LI with a number of accommodations that fit the

definition of "special education" under both the IDEA and Maine

law, including one-on-one tutoring and instruction in social

pragmatics. Second, observing that "the PET, the experts, the

School District and the parents all initially believed that [LI]

'needed' the identified services," the district court decided to

"hold the parties to their original understandings" and therefore

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treated "need" as an uncontested issue. 416 F. Supp. 2d at 167.

Based on its determination that LI satisfied both elements of the

IDEA eligibility test, the district court ordered the district "to

convene a PET meeting . . . to develop an IEP for [LI] that meets

her unique needs as a student with Asperger's Syndrome and a

depressive disorder."7 Id. at 168.

The district court also considered the parents' requests

for additional relief: reimbursement of their expenses in

unilaterally placing LI at TCS, and compensatory education to make

up for the district's failure to identify her as eligible under the

IDEA. Though the district court found that Mr. and Mrs. I had

given the requisite notice of the unilateral placement under Maine

law, the court also ruled that their decision to enroll LI at TCS

was not "'reasonably calculated to enable [her] to receive

educational benefits'" so as to entitle them to reimbursement. 416

F. Supp. 2d at 172 (quoting Florence County Sch. Dist. Four v.

Carter ex rel. Carter, 510 U.S. 7, 11 (1993) (further internal

quotation marks omitted by district court)). Finally, reasoning

that LI's "IEP will necessarily take into account the effect of the

school district's failure to identify and offer [LI] special

7
The state must develop and implement an "individualized
education program," or "IEP," to meet the particularized needs of
each child with a disability. 20 U.S.C. §§ 1412(a)(4),
1414(d)(1)(A)(i).

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education services earlier," the district court did not separately

grant the parents' request for compensatory education. Id. at 173.

III.

The district challenges the district court's conclusion

that LI qualifies as a "child with a disability" under the IDEA.

While we have never expressly set forth our standard of review for

a district court's decision on IDEA eligibility, we have treated

"ultimate determinations in cases under the Act" as mixed questions

of fact and law. Roland M. v. Concord Sch. Comm., 910 F.2d 983,

990 (1st Cir. 1990); see also Ms. M ex rel. K.M. v. Portland Sch.

Comm., 360 F.3d 267, 272 (1st Cir. 2004); Kathleen H. v. Mass.

Dep't of Educ., 154 F.3d 8, 13 (1st Cir. 1998). We agree with the

parties that whether a student qualifies as "a child with a

disability" under § 1401(3) also poses a mixed legal and factual

inquiry. See J.D. ex rel. J.D. v. Pawlet Sch. Dist., 224 F.3d 60,

64 (2d Cir. 2000); Yankton Sch. Dist. v. Schramm, 93 F.3d 1369,

1374 (8th Cir. 1996). Mixed questions generally "fall along a

degree-of-deference continuum, ranging from non-deferential plenary

review for law-dominated questions, to deferential review for fact-

dominated questions." In re PolyMedica Corp. Sec. Litig., 432 F.3d

1, 4 (1st Cir. 2005). But we need not decide at the moment where

along the continuum the question of IDEA eligibility falls, as the

parties agree that we should review the question for clear error.

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 The district maintains, however, that the district court

arrived at its conclusion that LI is a "child with a disability"

only through a series of legal errors. First, the district argues

that the district court misread the terms "adversely affects" and

"educational performance" as they appear in the regulatory

definitions of the disabilities attributed to LI, improperly

extending the breadth of § 1401(3)(A)(i). Second, the district

claims that the district court similarly misinterpreted the term

"special education" as it appears in § 1401(3)(A)(ii), the second

prong of the test for IDEA eligibility. The district also

challenges the determination that it effectively waived the

opportunity to dispute LI's need for special education. We review

these rulings of law de novo. Greenland, 358 F.3d at 156;

Manchester Sch. Dist. v. Crisman, 306 F.3d 1, 9 (1st Cir. 2002).

A.

1.

Though the IDEA "establishes a basic floor of education"

for children with disabilities, guaranteeing them "[a] free

appropriate public education," 20 U.S.C. § 1412(a)(1)(A), it does

not displace the states from their traditional role in setting

their own educational policy. Burlington, 736 F.2d at 788-89; see

also J.D., 224 F.3d at 65; Daniel R.R. v. State Bd. of Educ., 874

F.2d 1036, 1044 (5th Cir. 1989). Each state thus remains free to

calibrate its own educational standards, provided it does not set

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them below the minimum level prescribed by the statute. Roland M.,

910 F.2d at 987; Burlington, 736 F.2d at 788-89.

As we have seen, the right to special education and

related services under the IDEA extends to children "with" one or

more of a variety of disabilities, 20 U.S.C. § 1401(3)(A)(i), "who,

by reason thereof, need[] special education and related services."

Id. § 1401(3)(A)(ii). The IDEA does not itself define any of the

qualifying disabilities listed in § 1401(3)(A)(i), though the

Department of Education has issued a regulation fleshing them out.

34 C.F.R. § 300.8(c). The regulatory definitions, with one

exception not relevant here, state, among other requirements, that

each condition must "adversely affect[] a child's educational

performance." Id. § 300.8(c)(1)-(c)(13). In keeping with the

IDEA's respect for state policy judgments, however, the regulation

does not expand upon this phrase, "leaving it to each State to give

substance to these terms." J.D., 224 F.3d at 65; see also

Greenland Sch. Dist. v. Amy N., No. 02-136-JD, 2003 WL 134023, at

*8 (D.N.H. Mar. 19, 2003), aff'd on other grounds, 358 F.3d 150

(1st Cir. 2005).

It is here that the district's argument as to the proper

scope of § 1401(3)(A) begins to encounter difficulty. While

Maine's Department of Education has promulgated its own regulation

defining the disabilities recognized under the IDEA, those

definitions simply ape their federal counterparts, including the

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requirement that a disability "adversely affect[] the student's

educational performance." 05-071-101 Me. Code. R. §§ 3.2-3.14

(2006). The regulation, like its federal cousin, also does not

further elaborate on this phrase, although Maine has adopted its

own definition of "educational performance" for IDEA purposes:

The term "educational performance" includes academic
areas (reading, math, communication, etc.), non-academic
areas (daily life activities, mobility, etc.),
extracurricular activities, progress in meeting goals
established for the general curriculum, and performance
on State-wide and local assessments.

Id. § 2.7. Despite this expansive notion of educational

performance, and in the absence of any regulatory guidance as to

the term "adversely affects," the district asks us to hold that a

child meets the first criterion of IDEA eligibility in Maine "only

if the student's condition imposes a significant negative impact on

the child's educational performance . . . limited to those areas of

performance actually being measured and assessed by the local unit,

in accordance with law." We decline to do so.

At the outset, Maine does not look only at "areas of

performance actually being measured and assessed by the local unit"

when determining whether a child has a disability under the IDEA.

That much is clear from the regulatory definition of "educational

performance" itself, which counts "performance on state-wide and

local assessments" as just one of a number of different indicators

embraced by the concept. As the district points out, the term

"general curriculum," which also appears in the definition of

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educational performance, has a narrower meaning under the

regulations, i.e., "the school administrative unit's local

curriculum for grades K-12 which incorporate the content standards

and performance indicators of the Learning Results."8 05-071-101

Me. Code. R. § 2.11. Based on this definition, the district argues

that "educational performance" encompasses only those "performance

indicators" measured as part of the local curriculum.9 Even if the

district's reading of "general curriculum" is correct, however, the

fact remains that a student's progress in that regard comprises but

one of the aspects of "educational performance" as defined by the

regulation. More far-ranging measurements, such as "academic

areas" and "non-academic areas," are also included.

As the magistrate judge and the district court observed,

Maine's broad definition of "educational performance" squares with

the broad purpose behind the IDEA: "to ensure that all children

with disabilities have available to them a free and appropriate

public education that emphasizes special education and related

8
Maine's "Learning Results" are a "statewide system" developed
to "establish high academic standards at all grade levels" in eight
different subject areas. Me. Rev. Stat. Ann. tit. 20-A, § 6209
(Supp. 2006).
9
More specifically, the district argues that, while Maine has
developed extensive performance indicators to measure progress
toward the "Learning Results," 05-071-131 Me. Code R. §§ 1-8, state
law does not require the use of these criteria, leaving measurement
of student achievement to a "local assessment system." Me. Rev.
Stat. Ann. tit. 20-A, § 6202-A. We need not, and do not, pass upon
this argument. See Part III.A.2, infra.

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services designed to meet their unique needs and prepare them for

further education, employment, and independent living." 20 U.S.C.

§ 1400(d)(1)(A) (emphases added). We have likewise held that the

IDEA entitles qualifying children to services that "target 'all of

[their] special needs,' whether they be academic, physical,

emotional, or social." Lenn v. Portland Sch. Comm.,, 998 F.2d

1083, 1089 (1st Cir. 1993) (quoting Burlington, 736 F.2d at 788).

It is true that we have also stated that IDEA services need not

address "problems truly 'distinct' from learning problems."

Gonzalez v. P.R. Dep't of Educ., 254 F.3d 350, 352 (1st Cir. 2001);

see also Rome Sch. Comm. v. Mrs. B., 247 F.3d 29, 33 n.3 (1st Cir.

2001) (noting that, in determining adequacy of IEP for emotionally

disturbed boy, "[t]he question is whether [his] behavioral

disturbances interfered with the child's ability to learn"). But

it does not follow, as the hearing officer wrongly concluded, that

a child without "academic needs" is per se ineligible for IDEA

benefits, especially when the state has conditioned eligibility on

a standard that explicitly takes "non-academic areas" into account.

See Weixel v. Bd. of Educ., 287 F.3d 138, 150 (2d Cir. 2002)

("IDEA's coverage is not limited to students with 'learning

disabilities' . . . ."). In other words, as the district admits,

"educational performance in Maine is more than just academics."

In light of Maine's broad notion of "educational

performance" as the standard of IDEA eligibility, we see no basis

-22-
for restricting that standard to "areas of performance actually

being measured and assessed by the local unit." Indeed, "there is

nothing in IDEA or its legislative history that supports the

conclusion that . . . 'educational performance' is limited only to

performance that is graded." See Robert A. Garda, Jr., Untangling

Eligibility Requirements Under the Individuals with Disabilities

Education Act, 69 Mo. L. Rev. 441, 471 (2003). To be sure, some

states have adopted more circumscribed criteria for identifying

children with disabilities under the IDEA, requiring, for example,

that a student perform poorly in a specific area of "basic skills."

See J.D., 224 F.3d at 66 (discussing prior version of 22-000-06 Vt.

Code Reg. §§ 2362(a)(2), (f) (2006)). Maine, however, has chosen

not to do so.10 We therefore decline the district's invitation to

reformulate state educational policy by narrowing the indicia of

educational performance used as the test for IDEA eligibility under

Maine law. The district court properly articulated this standard

10
The Maine Department of Education has proposed amending its
special education regulations to insert, inter alia, a requirement
that "[a] child's disability must result in an adverse affect [sic]
on the child's ability to learn and/or perform the academic, daily
living, and/or age-relevant tasks required to demonstrate
educational progress in the general curriculum." Maine Unified
Special Education Regulation § VII.3 (proposed Nov. 2006), to be
codified at 05-071-101 Me. Code R. § 1 et. seq., available at
http://www.maine.gov/education/rulechanges.htm (last visited Feb.
21, 2006). The proposed regulations also restrict the definition
of "educational performance" for children older than five to
"academic areas (written literacy skills, math, communication,
etc.) [and] functional areas of performance (daily life activities)
. . . ." Id. § II.9. These draft regulations, still in the public
comment period, are not before us.

-23-
as "whether [LI's] condition adversely affected her performance in

any of the educational areas Maine has identified." 416 F. Supp.

2d at 159 (footnote omitted).

The district also argues that the district court

misconstrued the "adversely affects" component of the test to

include disabilities with "any adverse effect on educational

performance, however slight . . . ." Id. at 160. The correct

formulation, the district urges, requires "some significant impact

on educational performance." In rejecting this proposal, the

district court reasoned that the phrase "adversely affects," as it

appears in the relevant regulations, "has no qualifier such as

'substantial,' 'significant,' or 'marked,'" and declined to infer

such a limitation "from Maine's regulatory silence." Id. We agree

with this interpretation of the "adversely affects" standard.

Though the district marshals a number of arguments in

support of its contrary position, they all sound a common theme:

that an unlimited definition of "adversely affects" will qualify

every child with one of the listed disabilities--no matter how

minor--for IDEA benefits. This contention, however, overlooks the

structure of the IDEA's eligibility standard, which requires not

only that a child have one of the listed conditions, §

1401(3)(A)(i), but also that, "by reason thereof," the child "needs

special education and related services," id. § 1401(3)(A)(ii). So

a finding that a child meets the first criterion because his or her

-24-
disability adversely affects educational performance--to whatever

degree--does not itself entitle the child to special education and

related services under the IDEA. See Mark C. Weber, Special

Education Law and Litigation Treatise § 2.2(1), at 2:4 (2d ed.

2002); Garda, supra, at 490-91. The child must also need special

education and related services by reason of the disability.11

In fact, an adverse effect on educational performance,

standing alone, does not even satisfy the first prong of the

eligibility test. The child's condition must also possess the

additional characteristics required by the regulatory definitions

of each of the disabilities enumerated in § 1401(3)(A)(i). See 34

C.F.R. §§ 300.8(c)(1)-(c)(13); 05-071-101 Me. Code. R. §§ 3.2-3.14.

For example, to meet the first part of the eligibility standard on

the basis of autism, a child must have "[1] a developmental

disability [2] significantly affecting [3] verbal and [4] nonverbal

communication and [5] social interaction, [6] generally evident

before age three, [7] that adversely affects a child's educational

performance." 34 C.F.R. § 300.8(c)(1)(i); 05-071-101 Me. Code. R.

11
In attacking this reasoning, the district argues that the
second part of the definition of "child with a disability" is too
broad to function as a meaningful filter for IDEA eligibility. For
the reasons stated in Part III.B.2, infra, we do not have occasion
to address the scope of that provision here. For the moment, we
note only that the district recognized, in its brief to the hearing
officer, that the first and second prongs of § 1401(3)(A) do
operate in conjunction to determine eligibility. Post-Hrg. Memo.
at 6 ("'adverse effect' and the child's 'need for special education
are intertwined . . . .").

-25-
§ 3.2. Thus, the "adversely affects educational performance"

requirement serves as but one of a list of factors that must be

present for a child's condition to qualify as a disability under §

1401(3)(A)(i)--and, to receive IDEA benefits, the child must also

need special education and related services by reason of the

disability under § 1401(3)(A)(ii). The district court's

interpretation of "adversely affects," then, is unlikely to loose

the torrent of IDEA claims forecast by the district and its amici.

The district's specific arguments fare no better. The

district contends that § 1401(3)(a)(i) fails to put the states on

notice that, as a condition of accepting federal money under the

IDEA, they are required to provide benefits to children whose

conditions have merely an "adverse effect" on their educational

performance. It is true that "when Congress attaches conditions to

a State's acceptance of federal funds" pursuant to its Spending

Clause authority, "the conditions must be set out unambiguously" so

that each state can intelligently decide whether to take the money

and its accompanying obligations. Arlington Cent. Sch. Dist. Bd.

of Ed. v. Murphy, 126 S. Ct. 2455, 2459 (2006) (internal quotation

marks omitted). Based on this principle, the Supreme Court has

held that whether the IDEA imposes a particular obligation on the

states depends, at the outset, on whether the IDEA "furnishes clear

notice regarding the liability at issue . . . ." Id.

-26-
 The principal place to look for such notice, of course,

is the text of the IDEA itself. Id. The district asserts that the

language of § 1401(3)(A)(i) fails to clarify that a state's duty to

provide IDEA benefits extends to children with disabilities having

only an adverse effect on educational performance. In fact, the

district argues, the statute--through its use of the term

"disability"--limits that duty to children whose conditions

"significantly impact educational performance." We disagree.

To properly understand "disability" as it appears in the

IDEA, we do not, as the district implores, resort to dictionary

definitions of the word "disable," but to § 1401(3)(A)(i), which

functions as the first part of the statutory definition of "child

with a disability." Section 1401(3)(A)(i), as the district court

observed, does not include the qualifying language urged upon us by

the district, but simply defines "child with a disability" as a

child "with" one of a number of specific conditions.12

The district also directs us to the more restrictive

meaning of the term "disability" under Title II of the Americans

with Disabilities Act and the Rehabilitation Act. Because the IDEA

contains its own definition of the term, however, its appearance in

other acts of Congress is of little moment. See United States v.

12
Contrary to the district's suggestion, that § 1401(3)(A)(i)
uses the words "impairment" or "serious" in naming some of the
disabilities set forth provides no basis for inferring that any
condition must be a "serious impairment" to meet the statutory
standard, let alone a "significant impact" requirement.

-27-
Meade, 175 F.3d 215, 220-21 (1st Cir. 1999). Putting aside the

difference between the legislative goals of the IDEA and these

other acts, then, the IDEA simply defines "disability" differently

than they do. Compare 20 U.S.C. § 1401(3)(A) with 29 U.S.C. §

705(9)(B) and 42 U.S.C. § 12102(2)(A) (defining "disability" as

"physical or mental impairment that substantially limits one or

more major life activities"). This clear disparity in text puts

the district's suggestion that we look to those other acts in

construing the term "disability" here on par with comparing "plums

and pomegranates." Meade, 175 F.3d at 221.

Given the express definition of "disability" set forth in

§ 1401(3)(A)(i), we need look no further to conclude that the

statute sufficiently articulates the first prong of the standard

for IDEA eligibility and, in so doing, adequately informs the

states of the extent of their obligations. Murphy, 126 S. Ct. at

2463. The district and its amici nevertheless argue that this

standard, as interpreted by the district court, flies in the face

of congressional admonishments against identifying too many

students as "children with disabilities" under the IDEA. It is

true that, in amending the Act in 1997, Congress voiced concern

about "over identifying children as disabled when they may not be

truly disabled . . . particularly in urban schools with high

proportions of minority students . . . ." H.R. Rep. No. 105-95, at

89 (1997), reprinted in 1997 U.S.C.C.A.N. 78, 86. To remedy this

-28-
problem, Congress changed the formula for calculating the funds due

each state under the IDEA from one "based on the number of children

with disabilities to a formula based on census and poverty . . . ."

Id. at 88, 1997 U.S.C.C.A.N. at 85.

Notably, though, Congress thought this shift--rather than

any alteration to the eligibility criteria--sufficient to address

the over-identification problem. Id. at 89, 1997 U.S.C.C.A.N. at

87. Congress specifically stated, in fact, that the change to the

funding formula "should in no way be construed to modify the

obligation of educational agencies to identify and serve students

with disabilities." Id. at 88, 1997 U.S.C.C.A.N. at 85. Congress

eschewed any change to the eligibility standard not only in 1997,

but also in 2004, when it amended the IDEA again. Individuals with

Disabilities Education Improvement Act of 2004, Pub. L. No. 108-

446, § 602(3)(A), 118 Stat. 2647, 2652, codified at 20 U.S.C. §

1401(3)(A). The Department of Education similarly declined, by and

large, to tinker with its definitions of the § 1401(3)(A)(i)

disabilities when it issued regulations in response to the amended

Act. 71 Fed. Reg. 46,540, 46,549-46,551 (Aug. 14, 2006). Thus,

although the district and its amici argue that an over-

identification problem persists, we cannot tighten the standard for

IDEA eligibility when Congress itself has chosen not to do so.13

13
Moreover, Congress took this course of action despite the
presidential committee report touted by the district and its amici
in support of their proffered standard. President's Comm'n on

-29-
 The legislative history, then, only strengthens our

conviction that § 1401(3)(A)(i), as construed by the district

court, does not offend the Spending Clause by springing hidden

liabilities upon participating states. Furthermore, as the

district acknowledges, states deciding whether to enter into the

IDEA bargain also have the benefit of the federal regulation

defining the disabilities set forth in § 1401(3)(A)(i). Those

definitions, again, specifically require that each disability (save

one) "adversely affect[] a child's educational performance." 34

C.F.R. §§ 300.8(c)(1)-(c)(13). They do not contain the limiting

language urged by the district, i.e., "significantly impacts

educational performance."

We reject the district's argument that such a limitation

lurks in the term "adversely," which the district equates with

"calamitously" or "perniciously" on the authority of an unabridged

dictionary. We think it considerably more likely that federal

regulators used "adverse" in its ordinary sense, namely "against."

Black's Law Dictionary 58 (8th ed. 2004); see also Webster's Third

Excellence in Special Educ., A New Era: Revitalizing Special
Education for Children and Their Families (2002), available at
http://www.ed.gov/inits/commissionsboards/whspecialeducation/
index.html (last visited Jan. 19, 2007). This report not only
further expressed concern about over-identification, as the
district and its amici point out, but strongly criticized the
regulatory definitions of the disabilities recognized by the IDEA.
Id. at 22. Because neither Congress nor the Department of
Education appears to have acted on the commission's
recommendations, however, the report is of little use in construing
the eligibility standards that have endured.

-30-
New International Dictionary of the English Language (Unabridged)

31 (1993) (giving primary definition of "adverse" as "acting

against or in a contrary direction").14 In this way, the regulation

sensibly demands that a disability cannot qualify a child for IDEA

benefits unless it has a negative effect on educational

performance; no effect, or a positive one, will not do.15 The

regulation does not, however, put any quantitative limit,

"significant" or otherwise, on the disability.

Maine's regulation, cribbed from 34 C.F.R. § 300.8, also

requires no particular degree of impact on educational performance.

05-071-101 Me. Code. R. §§ 3.2-3.14. This fact alone distinguishes

this case from the decisions of other courts, cited by the

district, which derived a higher standard from state law. See

J.D., 224 F.3d at 66-67; Gregory M. ex rel. Ernest M. v. State Bd.

of Educ., 891 F. Supp. 695, 702 (D. Conn. 1995); Doe ex rel. Doe v.

14
One district court recently used the secondary definition of
"adverse" from a different dictionary--"causing harm"--to interpret
the "adversely affects" requirement, concluding that, when a
student "experiences only a slight impact on his educational
performance, it cannot be said that the student is harmed." Ashli
& Gordon C. ex rel. Sidney C. v. Hawaii, No. 05-00429-HG-KSC, 2007
WL 247761, at *9 (D. Hawai'i Jan. 23, 2007). In fact, however, the
student is still "harmed"--if only slightly--so the court's
conclusion does not follow from the definition it cites. As a
result, Ashli & Gordon C. does not persuasively address the absence
of any qualitative limitation in the regulatory language.
15
The "adversely affects" test also serves an additional
function: ensuring that it is the "enumerated disability, and not
other factors" that impacts educational performance. See Garda,
supra, at 486.

-31-
Bd. of Educ., 753 F. Supp. 65, 70 & n.9 (D. Conn. 1990).16 In

J.D., for example, the Second Circuit considered a Vermont

regulation that defined "adverse effect of the disability on

educational performance" to require a determination "that the

student is functioning significantly below expected age or grade

norms, in one or more of the basic skills." 224 F.3d at 66

(internal quotation marks omitted). This provision further

required that the "determination of adverse effect, usually defined

as 1.0 standard deviation or its equivalent, shall be documented

and supported by two or more measures of school performance," which

were themselves specified by the regulation. Id. Based on this

standard, the Second Circuit concluded that the child did not

qualify for IDEA benefits because he was "unable to identify at

least two school performance measures that point to an adverse

effect," despite his emotional-behavioral disability. Id. at 67.

The Second Circuit reached its decision in J.D., then,

by applying the highly specific definition of "adversely affects

educational performance" set forth in state law, not by imposing

its own gloss on that language, as the district invites us to do

here. For the reasons we have stated, we decline that invitation.

16
The Connecticut decisions applied a now-superseded state
regulation defining "socially and emotionally maladjusted" in part
as "a condition which 'significantly impedes the child's rate of
educational development.'" Doe, 753 F. Supp. at 70 n.9 (quoting
Conn. Agencies Regs. § 10-76a-1(m) (1989)); see also Gregory M.,
891 F. Supp. at 702 (articulating same test).

-32-
States wishing to put meat on the bones of the "adversely affects"

standard are free to do so--provided, of course, they do not

transgress the "floor" of substantive protection set by the IDEA.17

See generally Burlington, 736 F.2d at 788-89. On its own, however,

the federal regulation does not contain the "significant impact"

requirement the district desires, and we cannot put it there. The

district court correctly ruled that any negative impact, regardless

of degree, qualifies as an "adverse effect" under the relevant

federal and state regulations defining the disabilities listed in

§ 1401(3)(A)(i).

2.

Because the district court applied the right standard, we

review its determination that LI has one of the disabilities

included in § 1401(3)(A)(i) "for clear error on the record as a

whole." Ms. M., 360 F.3d at 272. We find none. As the hearing

officer noted, the parties agree that LI suffers from Asperger's,

17
Maine recently passed emergency legislation, effective May
30, 2006, defining "child with a disability," in relevant part, as:
"[f]or children at least 3 years of age and under 20 years of age
evaluated in accordance with [20 U.S.C. §§ 1414(a)-(c)] as measured
by both standardized, norm-referenced diagnostic instruments and
appropriate procedures with delays or impairments such that the
children need special education . . . with at least one" of a
number of specified conditions. An Act To Improve Early Childhood
Education, 2006 Me. Legis. Serv. 662, sec. A-15, § 7001(1-B)(B), to
be codified at Me. Rev. Stat. Ann. tit. 20-A, § 7001(1-B)(B). The
Maine Department of Education has also proposed a regulation
imposing a number of requirements, similar to Vermont's, on the
adverse effect determination. See Maine Unified Special Education
Regulation, supra, § VII.3 These versions of the Maine definitions
are not before us, however, and we express no opinion on them.

-33-
manifested in her poor pragmatic language skills and social

understanding difficulties, as well as from a depressive disorder

brought on by the stress of managing these problems; indeed, the

district has never questioned the opinions of LI's

neuropsychologist and speech therapist in this regard. The parties

disagree, however, on whether these conditions have adversely

affected LI's educational performance in light of her strong

grades, generally nondisruptive classroom behavior, and what the

district court called her "undisputed intellectual ability." 416

F. Supp. 2d at 161. In a lengthy written opinion, the district

court tackled this issue head on, ultimately finding that, despite

LI's above-average academic performance, "many of [her] social and

communication deficits, including her isolation, inflexibility, and

self-mutilation during schooltime, are precisely in the content

areas and skills that Maine mandates educationally." Id. at 163.

This finding, the district court reasoned, compelled the conclusion

that LI's disability had exerted an adverse effect on her

educational performance under the governing standard.

Much of the district's challenge to this outcome relies

on its contention that the district court applied the "adversely

affects educational performance" test too leniently, which we have

already rejected. A few of the district's supplemental points,

however, merit additional discussion. First, the district argues

that the district court mistakenly gauged LI's educational

-34-
performance on the basis of selected "performance indicators," see

05-071-131 Me. Code R. §§ 1-8, that Maine has developed to measure

students' proficiency in various "content standard subject areas."

Me. Rev. Stat. Ann. tit. 20-A, § 6209. This was error, the

district asserts, because Maine does not mandate the actual use of

the performance indicators by local school districts, but has

simply instructed them to develop their own "local assessment

systems." Id. § 6202-A. While we have our doubts about this

proposition, see 05-071-127 Me. Code R. § 4.02 (requiring each

district to "implement a local assessment system as the measure of

student progress on achievement of the content standards of the

system of Learning Results established in" 05-071-131 Me. Code R.

§§ 1-8), the district court did not assess LI's educational

performance solely by reference to the performance indicators. Our

review of the record convinces us that, even if the district court

erred by also using the performance indicators to measure LI's

educational performance, the error did not affect the outcome of

its analysis.

In particular, the district court found that LI had

difficulty with "communication," an area of "educational

performance" specifically incorporated in Maine's definition of

that term for IDEA purposes. 416 F. Supp. 2d at 162 & n.8 (quoting

05-071-101 Me. Code R. § 2.7). The district disputes this finding,

emphasizing certain aspects of both her educators' observations and

-35-
the results of the testing conducted by Popeneo and Lambke. The

district court, however, focused on other aspects of those

materials, such as the educators' reports of LI's "distancing"

herself from her teachers and peers and, most significantly, the

experts' express conclusions that LI had "poor pragmatic language

skills" and "significant social understanding deficits." 416 F.

Supp. 2d at 161-63. The district court was by no means required to

second-guess these conclusions, especially after they had been

unreservedly accepted by both the districts' representatives at the

PET and the hearing officer. Though the record of the

administrative hearing might permit a different view, the district

court did not commit clear error in finding that LI's Asperger's

has impaired her ability to communicate.

Moreover, the district court's ruling that LI had

demonstrated an adverse effect on her educational performance did

not rest solely on her deficits in communication, but also on other

difficulties implicating "the career preparation component of the

Maine general curriculum." Id. at 162. The district does not

question that "career preparation"--which comprises one of the

"content standards" dictated by statute, Me. Rev. Stat. Ann. tit.

20-A, § 6209(2)(A), rather than one of the "performance indicators"

established by regulation--is irrelevant to the "educational

performance" inquiry for purposes of the IDEA. Indeed, the IDEA

exists, in part, to ensure children with disabilities receive an

-36-
education preparing them for employment. 20 U.S.C. § 1400(d)(1)(A).

Nor does the district question the lower court's specific finding,

consistent with the opinion of LI's current social worker, that a

number of LI's symptoms have hindered her in this area. 416 F.

Supp. 2d at 162. This finding was itself an adequate basis for the

district's court's conclusion that LI's educational performance has

suffered, even if, as the district argues, her condition has not

impacted her communication skills.

Second, the district argues that the impact of LI's

condition on her educational performance, which it sees as limited

to her suicide attempt and the events immediately preceding it in

the fall of 2003, was not sustained enough to constitute an adverse

effect. Though the magistrate judge accepted this point of view,

the district court disagreed, treating the suicide attempt as

simply the darkest point in the spectrum of LI's educational

difficulties. There is ample support for this approach in the

record. The signs of LI's Asperger's revealed themselves in the

fourth grade, when she began experiencing difficulty with peer

relationships, and first translated into a measurable impact on her

schoolwork in the fifth and sixth grades, when her grades declined.

More importantly, there is every indication that these symptoms

will persist, to one degree or another: they have not completely

subsided since LI's enrollment at TCS, and both Popeneo and LI's

current social worker believe that continued intervention is

-37-
essential to LI's long-term success. In light of this evidence,

the district's argument that LI's suicide attempt did not adversely

affect her educational performance is beside the point; as Popeneo

explained, the suicide attempt was but a manifestation of LI's

Asperger's and associated depression. The district court properly

treated these disorders, rather than the suicide attempt, as the

relevant condition for assessing the impact of LI's disability upon

her educational performance.

Third, the district charges that the district court

"committed legal error" by ruling that LI met the first prong of

the standard for IDEA eligibility without assigning her one of the

disabilities listed in § 1401(3)(A)(i). As we have pointed out,

that a condition "adversely affects a child's educational

performance" functions as just one of the essential elements of

each of the qualifying disabilities as defined in the regulation,

so a determination that a child has one of those disabilities would

ordinarily demand a showing as to each of those elements. Here,

however, the district court specifically noted that, while the

parties were at odds as to whether LI's condition adversely

affected her educational performance, they were in agreement that

her condition otherwise "fit[] within those enumerated" by §

1401(3)(A)(i). 416 F. Supp. 2d at 156. The district has not

questioned this observation. Because the district did not dispute

below whether LI satisfied the additional criteria of any of the

-38-
relevant disability categories, its argument that the district

court should have chosen from among those categories is forfeit.

See, e.g., States Res. Corp. v. Arch. Team, Inc., 433 F.3d 73, 85

(1st Cir. 2005) ("This circuit religiously follows the rule that

issues not presented to the district court cannot be raised on

appeal.") (internal quotation marks omitted). There was no error

in the district court's § 1401(3)(A)(i) analysis.

B.

The district also argues that the district court

misapplied § 1401(3)(A)(ii), which requires that a child "need[]

special education and related services" as a result of his or her

disability in order to qualify for them under the IDEA. The

district asserts two errors: first, the district court used the

wrong definition of "special education," and, second, it found that

the district had waived any argument that LI does not "need"

special education based on the position it took before the PET and

the hearing officer. We believe the district court correctly

defined "special education" under § 1401(3)(A)(ii). We do not

decide, however, whether the district court properly treated the

"need" issue as waived, because the district has not adequately

explained to us why LI does not need special education, even under

its view of the proper standard for making that determination.

-39-
 1.

The IDEA defines "special education," in relevant part,

as "specially designed instruction, at no cost to parents, to meet

the unique needs of a child with a disability . . . ." 20 U.S.C.

§ 1401(29). A federal regulation, promulgated by the Department of

Education, elaborates:

Specially designed instruction means adapting, as
appropriate to the needs of an eligible child . . . , the
content, methodology, or delivery of instruction--

(i) To address the unique needs of the child that result
from the child's disability; and

(ii) To ensure access of the child to the general
curriculum, so that the child can meet the educational
standards within the jurisdiction of the public agency
that apply to all children.

34 C.F.R. § 300.39(b)(3) (2006).18 As the district court noted,

Maine law also contains its own definition of "special education":

"classroom, home, hospital, institutional or other instruction;

educational diagnosis and evaluation; transportation and other

supportive assistance, services, activities, or programs, as

defined by the commissioner [of education], required by exceptional

students."19 Me. Rev. Stat. Ann. tit. 20-A, § 7001(5) (1993).

18
Again, this regulation was amended effective October 13,
2006, but the amendment does not affect our analysis, so we cite to
the current version. See note 1, supra.
19
This definition is set forth as part of a statute requiring
each school district to, inter alia, "[p]rovide special education
for each exceptional student within its jurisdiction." Me. Rev.
Stat. Ann. tit. 20-A, § 7202(5) (1993). The statute defines
"exceptional student" as a person between the ages of five and

-40-
 The district court ruled that a number of the

interventions recommended by Popeneo and Lambke, and included in

the services offered by the PET under the Rehabilitation Act, were

"special education" within the meaning of federal law as well as

"under Maine's broader definition." 416 F. Supp. 2d at 166. In

challenging this conclusion, the district principally argues that

the district court misinterpreted Maine law to exceed IDEA

requirements as to the definition of "special education." We have

little trouble with the district court's interpretation, given the

expansive language of Me. Rev. Stat. Ann. tit. 20-A, § 7001(5),

but, in any event, that provision was not essential to the district

court's view that LI needs special education. The district court

also specifically ruled that certain of the services recommended

for LI constituted "special education" as defined by federal law.

416 F. Supp. 2d at 166.

Most significantly, the district court reasoned that

"extra instructional offerings such as social-skills and pragmatic-

language instruction are 'specially designed instruction' to ensure

[LI's] 'access . . . to the general curriculum.'" Id. (quoting 34

C.F.R. § 300.39(b)(3)). The district protests that its proffered

"social pragmatics instruction," which "was aimed more at

twenty who "[r]equires special education because of an impairment
in one or more" specified functions. Id. § 7001(2). As we have
observed, supra note 17, this provision was recently amended, as
were §§ 7001(5) and 7202(5), but the amended versions are not
before us.

-41-
counseling LI at how she could better interact with others" than at

traditional "speech services," qualifies as a "related service,"

not "special education," under the IDEA. The district has it

backwards, however. While "speech-language pathology services"

comprise a category of "related services," 20 U.S.C. § 1401(26)(A),

directly teaching social skills and pragmatic language to LI

amounts to adapting the content of the usual instruction to address

her unique needs and to ensure that she meets state educational

standards, viz., those defining educational performance to include

"communication" and requiring progress in "career preparation."20

See Part III.A.2, supra. The district court did not err in ruling

that the services recommended for LI by her neuropsychologist and

speech-language pathologist, and agreed to by the PET as part of

its Rehabilitation Act plan, are "special education."

2.

The district also challenges the district court's

resolution of whether LI "needs" the special education in question.

The district court made no finding on this point, electing to "hold

20
Contrary to the district's reading, the Second Circuit in
J.D. did not "conclude" that "training in peer relationship skills
. . . is more akin to a related service rather than special
education." Rather, as we have discussed, the court in J.D. ruled
that the student did not qualify for IDEA benefits because his
condition did not adversely affect his educational performance in
the manner required for IDEA eligibility under Vermont law. 224
F.3d at 67-68. The court in J.D. therefore had no occasion to
define "training in peer relationship skills," which the defendant
had offered as part of a Rehabilitation Act plan, as either special
education or a related service under the IDEA, and did not do so.

-42-
the parties to their original understandings" that "'[n]eed' is not

a contested issue." 416 F. Supp. 2d at 168. In support of this

course of action, the district court noted that "the factual record

on need is poorly developed" because "the PET meetings proceeded on

the basis that everyone agreed that LI 'needed' and should be

afforded what the experts recommended for her" and because the

district gave no indication that it disputed LI's need for special

education in either the prior written notice heralding its denial

of IDEA benefits or its brief filed in advance of the due process

hearing. Id. 167. Accordingly, the district court reasoned that

"[w]hether or not waiver is the correct term," it had no sensible

option but to conclude that LI "'needed' the identified services"

as the parties "all initially believed." Id.

The district insists that it preserved the issue of LI's

need for special education by presenting argument and evidence on

that score at the due process hearing. We agree with the district

that it adduced some evidence at the hearing, in the form of

testimony from McDevitt, as to LI's need for special education.

Specifically, in response to a question from counsel for the

district on whether he believed that LI "requires special

education, specialized instruction, take your pick, to do

acceptably well in school," McDevitt replied, "No, I don't." He

went on to state his view that LI was "having a successful time" at

TCS, even without "special services." McDevitt then explained why

-43-
the district's offer of Rehabilitation Act services should not be

construed as its opinion that "these interventions are necessary

interventions for [LI] to participate meaningfully in public

school," i.e., because they did not constitute special education,

but accommodations intended to make LI and her parents feel

comfortable about her return to Cornish.

We need not decide whether this presentation came too

late to raise the issue of LI's need for special education, as the

district court ruled, because the district does not explain why LI

does not need special education under the standard it urges us to

follow in making that determination. The district contends that

"whether a child needs special education for IDEA eligibility

should depend on whether that child requires special education to

benefit in those areas of educational performance that are

adversely affected," but does not argue that LI does not pass that

test. Instead, the district argues, based on McDevitt's testimony

and LI's performance at TCS, that she does not need special

education "to benefit from school" or "to do well in school."

But whether a child requires special education "to do

well in school," or even "to benefit from school," presents a

different question from whether the child requires special

education "to benefit in those areas of educational performance

that are adversely affected by her disability." The former inquiry

considers the effect of special education on the child's overall

-44-
achievement in school, while the latter focuses on the effect of

special education on the components of that achievement hampered by

the child's disability. See Garda, supra, at 498-99 (positing

"which of the child's performance areas must need special

education?" as a crucial question in developing the test for IDEA

eligibility under § 1401(3)(A)(ii)). Indeed, a child may "do well

in school" without special education, accumulating a high grade

point average, but may nevertheless perform below acceptable levels

in other areas, such as behavior. See, e.g., In re Monrovia

Unified Sch. Dist., 38 Inds. with Disabilities Educ. L. Reptr. (LRP

Publ'ns) 84, at 342-43 (Cal. State Educ. Agency Nov. 27, 2002)

(finding student to "require special education to address social,

behavioral, and written expression needs" despite "good academic

work"). The questions of whether such a child "needs special

education" under a proper interpretation of § 1401(3)(A)(ii)--and

how to articulate that interpretation in the first instance--have

generated a cacophony of different answers. See Garda, supra, at

491-507 (surveying divergent authority).

We do not attempt to compose the correct standard of

"need" here. We simply note the significant variance between the

standard the district urges us to adopt and the standard it argues

has been satisfied. McDevitt's testimony may have supported a

finding that LI does not require special education "to do well in

school," had the district court not ruled that the issue had been

-45-
waived. But the district does not explain how such a finding would

support the conclusion that LI does not "need special education"

under the IDEA and, in fact, argues that the proper inquiry

incorporates a substantially different standard, i.e., whether LI

"requires special education to benefit in those areas of

educational performance that are adversely affected." Conversely,

the district does not explain how the evidence received at the due

process hearing falls short of that standard. The district has

therefore failed to show that the district court's treatment of the

"need" issue as settled had any effect on its ultimate conclusion

that LI qualified for IDEA benefits. Even if the district court

erred in finding the district had waived the "need" argument, then,

the error was harmless. See Hampton Sch. Dist. v. Dobrowolski, 976

F.2d 48, 54 (1st Cir. 1992) (treating district court's mistaken

ruling that parents waived procedural objections to development of

IEPs as harmless error where alleged procedural flaws did not

meaningfully affect substance of IEPs).

The district has not directed us to any error undermining

the district court's determination that LI meets the second prong

of the standard for IDEA eligibility, 20 U.S.C. § 1401(3)(A)(ii).21

21
In its reply brief, the district contends that, even if LI
in fact needed the services deemed special education by the
district court, she did not need them "by reason of" her condition
as required by § 1401(3)(A)(ii). Because the district did not
raise this argument in its principal brief (or, for that matter,
before the district court), we do not consider it. See, e.g.,
Forcier v. Metro. Life Ins. Co., 469 F.3d 178, 183 (1st Cir. 2006).

-46-
Having found that the district court's ruling as to the first prong

also holds up, Part III.A, supra, we affirm the district court's

decision that LI is eligible for services under the IDEA.

IV.

In their cross-appeal, the parents challenge the adequacy

of the relief given as a remedy for the district's failure to

provide LI with IDEA benefits. First, they argue that the district

court wrongfully denied them reimbursement for the costs of

enrolling LI at TCS on the ground that it is not an educationally

appropriate placement. Second, they argue that the district court

should have explicitly ordered the district to provide LI with a

compensatory education as a remedy for its denial of IDEA services,

rather than leaving that matter for the PET to decide in the first

instance. We address these contentions in turn.

A.

The IDEA authorizes a district court reviewing the

outcome of a due process hearing to "grant such relief as the court

determines is appropriate." 20 U.S.C. § 1415(i)(2)(C)(iii). The

Supreme Court has read this provision, as it appeared in the

predecessor to the IDEA, as empowering a court "to order school

authorities to reimburse parents for their expenditures on private

special education for a child if the court ultimately determines

that such placement, rather than a proposed IEP, is proper under

the Act." Burlington, 471 U.S. at 369. In accordance with this

-47-
holding, parents "are entitled to reimbursement only if a federal

court concludes both that the public placement violated IDEA and

that the private school placement was proper under the Act."

Florence County, 510 U.S. at 15.

We have identified reimbursement under the IDEA as "'a

matter of equitable relief, committed to the sound discretion of

the trial court.'" Roland M., 910 F.2d at 999 (quoting Burlington,

736 F.2d at 801). Ordinarily, we review a district court's

decision to award or withhold equitable relief for an abuse of that

discretion. See, e.g., Valentin-Almeyda v. Municipality of

Aguadilla, 447 F.3d 85, 104 (1st Cir. 2006). But, as the Court

made clear in Florence County, the right to reimbursement of

private special education expenses depends in the first instance on

whether the private school placement was "proper." We consider

this threshold inquiry, like other conclusions demanded by the

IDEA, as a mixed question of fact and law. Part III, supra. As we

did with the question of LI's eligibility for IDEA benefits, we

will review the propriety of her enrollment at TCS for clear error

based on the parties' accession to that standard. Id.

Mr. and Mrs. I, however, claim that the district court

applied the wrong test in deciding that TCS was not a "proper"

placement for LI, a question we review de novo. Id. Again, the

district court ruled that the parents' decision to enroll LI at TCS

was not "'reasonably calculated to enable [her] to receive

-48-
educational benefits'" so as to entitle them to reimbursement. 416

F. Supp. 2d at 172 (quoting Florence County, 510 U.S. at 11

(further internal quotation marks omitted by district court)).

Despite the district court's recitation of this test, the parents

insist that it actually applied what they describe as a more

restrictive standard, derived from the Sixth Circuit's decision in

Berger v. Medina City Sch. Dist., 348 F.3d 513 (6th Cir. 2003).

The parents contend that this standard, which disallows

reimbursement for a unilateral private placement that "does not, at

a minimum, provide some element of special education services in

which the public school placement was deficient," id. at 523, is at

odds with Florence County.22

22
It should be noted that Florence County does not hold that
a private school placement must be "reasonably calculated to enable
the child to receive educational benefits" to give rise to
reimbursement under the IDEA; in fact, whether the private
placement there was proper had been "settled" by the time the case
arrived at the Court. 510 U.S. at 12-13. While the "reasonably
calculated" language appears in the opinion, the Court used it only
in quoting from the lower court decision being reviewed, which in
turn took the language from the Court's earlier opinion in Bd. of
Educ. v. Rowley, 458 U.S. 176 (1982). Rowley itself set forth the
"reasonably calculated" test as the measure of the adequacy of an
IEP, not the propriety of a private school placement. 458 U.S. at
206-07. Nevertheless, we have previously held, based on Florence
County, that "a private school placement must be reasonably
calculated to enable the child to receive educational benefits" to
constitute a proper placement. Rafferty v. Cranston Pub. Sch.
Comm., 315 F.3d 21, 26 (1st Cir. 2002) (internal quotation marks
omitted). We are bound by this prior holding, see, e.g., United
States v. Malouf, 466 F.3d 21, 26-27 (1st Cir. 2006), which, in any
event, the parties do not question.

-49-
 Like the district court, we do not detect any tension

between this aspect of the Sixth Circuit's holding in Berger and

the principle that a private school placement is improper unless it

is reasonably calculated to enable the child to receive educational

benefit. 416 F. Supp. at 172; see also Frank G. v. Bd. of Educ.,

459 F.3d 356, 364-65 (2d Cir. 2006) (applying "reasonably

calculated" test while discussing and distinguishing, but not

criticizing, Berger); Berger, 348 F.3d at 522 (quoting "reasonably

calculated" test). In Burlington, the Supreme Court reasoned that

because "parents who disagree with the proposed IEP are faced with

a choice: go along with the IEP to the detriment of their child if

it turns out to be appropriate or pay for what they consider to be

the appropriate placement," they are entitled to reimbursement of

the expenses of that placement if it turns out they were right in

choosing it. 471 U.S. at 370. Implicit in this reasoning is the

notion that parents rightfully decide on a private placement when

it addresses, at least in part, their child's special educational

requirements, while the IEP does not.

We do not see, then, how the decision to reject public

education in favor of enrolling a child in private school can be

described as "reasonably calculated to enable the child to receive

educational benefit" if the private school does not offer at least

"some element of special education services in which the public

school placement was deficient." Berger, 348 F.3d at 523. To hold

-50-
otherwise would, in essence, embrace the argument we explicitly

rejected in Rafferty: that the IDEA entitles a parent, at public

expense, to "seek any alternative school she wishes if the public

education is inadequate." 315 F.3d at 27.

Accordingly, the district court did not apply the wrong

standard in finding that TCS is not an appropriate private school

placement under the IDEA because it "does not offer any of the

special education services recommended by the experts or the PET."

416 F. Supp. 2d at 173. We are left, then, to review this finding

for clear error, and discern none. Although both of the experts

who examined LI, as well as her present social worker, have

stressed that LI needs direct teaching of social skills to manage

the effects of her Asperger's, it is undisputed that TCS has never

provided her with this service, or any roughly equivalent

intervention. TCS has also not supplied the cognitive behavioral

therapy recommended by Popeneo or the close supervision or one-on-

one tutoring offered by the PET as part of the Rehabilitation Act

plan. The district court did not clearly err in judging TCS an

inappropriate private placement in the absence of any of these

special education services.

The parents resist this conclusion on two principal

grounds. First, they liken certain of TCS's distinguishing

features to the interventions recommended for LI and found by the

district court to constitute "special education" in assessing LI's

-51-
eligibility under the IDEA. As we have recognized, a private

placement need provide only "some element of the special education

services" missing from the public alternative in order to qualify

as reasonably calculated to enable the child to receive educational

benefit. Berger, 348 F.3d at 523 (emphasis added). Nor must the

placement meet every last one of the child's special education

needs. Frank G., 459 F.3d at 365. But the reasonableness of the

private placement necessarily depends on the nexus between the

special education required and the special education provided.

Here, the connection between, for example, the one-on-one tutoring

recommended for LI and the relatively small student-faculty ratio

boasted by TCS was more than remote enough to support the district

court's conclusion that the choice of the private school was not

reasonably calculated to ensure that LI received educational

benefit--particularly in light of the fact that, as we have just

discussed, TCS did not offer anything approaching the direct

teaching of social skills unanimously endorsed by the professionals

who have tested and treated LI.

Second, the parents protest that, laboring under the

trauma of LI's suicide attempt and facing a lack of cooperation

from the district, they acted reasonably by any measure in

unilaterally placing LI at TCS. We sympathize with the family's

emotional upheaval, and we certainly do not condone the district's

apparent inattention to the task of locating a tutor for LI as it

-52-
repeatedly promised it would. And we cannot doubt that TCS, where

LI's sister had prospered and where LI herself had expressed

interest in attending even before the events of the fall of 2003,

must have seemed an attractive solution to an exceedingly difficult

set of circumstances. But these considerations cannot change the

fact that TCS, where LI has remained for more than two full

academic years, simply does not provide the special education

services that LI's mental health professionals have prescribed.

The district court did not commit clear error when it found that

TCS is not an appropriate private placement under the IDEA.23

B.

Finally, Mr. and Mrs. I challenge the district court's

refusal to order the district to provide LI with compensatory

education. We have recognized that, as another form of

"appropriate relief" available under § 1415(i)(2)(C)(iii), a court

may require "compensatory education" in the form of "further

services, in compensation for past deprivations" of IDEA benefits.

Me. Sch. Admin. Dist. No. 35 v. Mr. R., 321 F.3d 9, 17-18 (1st Cir.

2003). Compensatory education, like reimbursement, is a form of

equitable relief. G ex rel. RG v. Fort Bragg Dependent Schs., 343

F.3d 295, 309 (4th Cir. 2003); accord Ms. M, 360 F.3d at 273-74.

23
We do not reach, then, the district's alternative arguments
for affirmance: that the parents failed to provide the requisite
notice of their intent to enroll LI in private school at public
expense, and that the district offered LI a free and appropriate
public education in the form of its Rehabilitation Act plan.

-53-
Accordingly, we review the district court's decision on

compensatory education for abuse of discretion. Part IV.A, supra.

The district court considered the parents' request for

compensatory education in light of the other relief granted, namely

its order to the district "to convene a PET meeting in accordance

with State and Federal law to develop an IEP for [LI] that meets

her unique needs as a student with Asperger's Syndrome and a

depressive disorder." 416 F. Supp. 2d at 168. Noting that "[t]he

IEP necessarily will take into account the effect of the School

District's failure to identify and offer special education services

earlier," the district court declined to order compensatory

education on the theory that the PET could better assess "what

special education [LI] needs at this point . . . ." Id. at 173.

This approach strikes us as sensible and, moreover, not

an abuse of the district court's discretion. As the parents

acknowledge, it is not unheard of for a compensatory education

claim to be remanded to the responsible educational authority for

consideration, particularly where "the district court does not

believe that the record is sufficient to permit it to make the

highly nuanced judgments necessary to resolve the claim . . . ."

Mr. R, 321 F.3d at 20. The parents, in fact, do not appear to

object to such an approach here, provided we "ensure at the very

least that guidelines governing the type, form, intensity, and

duration of services are specified to assist the parties in moving

-54-
forward without confusion or acrimony." This is a worthy

objective, to be sure, but we are not up to the task.

Like the district court, we confront an administrative

record naturally devoid of any evidence as to the effect of the

district's failure to offer IDEA services to LI over the past two

years and counting, since LI's eligibility for those services was

precisely what was at issue in the due process hearing. As a

result, any "guidelines" that we might set forth to "govern" the

resolution of the compensatory education claim would amount to an

improper advisory opinion, just as it would have been a highly

speculative exercise for the district court to attempt to resolve

the claim on its merits. The district court ordered the district

to convene a PET, in accordance with applicable law, for the

purpose of formulating an IEP for LI that meets her needs, and

further recognized that this task would necessarily require

resolution of the compensatory education inquiry. We do not view

this as an abuse of discretion, and Mr. and Mrs. I have not

provided us with any authority to the contrary.

V.

For the foregoing reasons, we affirm the judgment of the

district court in its entirety.

-55-