United States Court of Appeals
For the First Circuit
No. 07-1860
MARK LESSARD AND LINDA LESSARD,
Plaintiffs, Appellants,
v.
WILTON-LYNDEBOROUGH COOPERATIVE SCHOOL DISTRICT AND
NEW HAMPSHIRE DEPARTMENT OF EDUCATION,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Lynch, Circuit Judge,
Selya and Siler,* Senior Circuit Judges.
Richard L. O'Meara, with whom Staci K. Converse, Nicole L.
Bradick, and Murray, Plumb & Murray were on brief, for appellants.
Jeanne M. Kincaid, with whom Melissa A. Hewey and Drummond
Woodsum & MacMahon were on brief, for appellees.
February 25, 2008
*
Of the Sixth Circuit, sitting by designation.
SELYA, Senior Circuit Judge. This appeal stems from
parents' laudable efforts to provide the best possible education
for their profoundly disabled daughter. After disagreements arose
over the contents of the child's proposed individualized education
program (IEP), a state hearing officer overruled the parents'
objections and concluded that the proposed IEP complied with the
strictures of the Individuals with Disabilities Education Act
(IDEA), 20 U.S.C. §§ 1400-1491 (2000).1 A federal district court
affirmed that decision.
On appeal, we hold that the defendants — the local school
district and the state educational agency — fulfilled their
responsibilities under the IDEA, that the delays complained of were
attributable to the parents (and, thus, afford no grounds for
relief), and that the IEP at issue here satisfied the applicable
statutory imperatives. Consequently, we affirm the judgment below.
I. BACKGROUND
At the heart of this litigation stands a young woman
named Stephanie Lessard, who was eighteen years of age at the time
of the relevant events. We rehearse the facts pertaining to
Stephanie's plight as supportably found by the district court. See
1
The IDEA was amended by the Individuals with Disabilities
Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat.
2647, but the relevant amendments did not take effect until July 1,
2005. See id. § 302(a)(1). Because that date is subsequent to the
occurrence of the events at issue here, we refer throughout to the
earlier version of the IDEA.
-2-
Lessard v. Wilton-Lyndeborough Coop. Sch. Dist., 2007 WL 1221103,
at *1-4 (D.N.H. Apr. 23, 2007).
Stephanie Lessard has been diagnosed with moderate mental
retardation (she possesses an IQ of 42), cognitive delays, speech
impairments, a seizure disorder, scoliosis, a leg-length
discrepancy, and partial paralysis of her left side. Since 2001,
she has been a day student at Crotched Mountain Rehabilitation
Center, a New Hampshire facility providing special needs services
to the Wilton-Lyndeborough Cooperative School District (the School
District).
In April of 2004, Stephanie's mother, Linda Lessard, met
with representatives of the School District to map out Stephanie's
IEP for the coming school year (2004-2005). Between that inaugural
meeting and December of the same year, Mrs. Lessard and the IEP
team huddled on at least four occasions to discuss the IEP, but
progress was slow. In the interim, the School District continued
to implement Stephanie's 2003-2004 IEP.
Of particular pertinence for present purposes is the
meeting that took place on August 16, 2004. On her own initiative,
Mrs. Lessard brought a psycholinguist (Dr. Kemper) to the meeting.
He explained to the assemblage why the Lindamood-Bell Phoneme
Processing System (LiPS) was in his view the most effective way to
teach literacy to a child with learning disabilities as pronounced
as Stephanie's. The IEP team declined to adopt that view, noting
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that none of those assembled was schooled in that particular
pedagogical methodology. The team nonetheless agreed to look into
the matter.
At the same meeting, the School District gave Mrs.
Lessard a proposed IEP for the upcoming school year and requested
that she sign it. The IEP did not contain a component specifically
addressing the correction of Stephanie's behavioral problems; that
component was under ongoing review by personnel at Crotched
Mountain. Curiously, a one-page "transition plan" (the last page
of the IEP) ended abruptly in mid-sentence.
Lessard refused to sign the proffered IEP.2 After the
meeting, the School District sent her a letter requesting that she
make clear what portions of the IEP engendered dissatisfaction.
The School District also offered to schedule additional meetings to
discuss and perhaps reshape the IEP. The Lessards kept their own
counsel and did not communicate their specific objections to the
IEP.
Another meeting took place in October. It soon became
apparent that a schism existed: whereas the School District
envisioned the task at hand to be putting the finishing touches on
the proffered IEP, Mrs. Lessard envisioned the IEP process as in
2
This was not the first time that Stephanie's parents had
balked at signing a newly tendered IEP. Stephanie's 2002-2003 IEP
was not signed until June of 2003, and her 2003-2004 IEP was not
signed until January of 2004.
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its infancy. Yet, despite her evident displeasure, Mrs. Lessard
again declined to chronicle any specific criticisms of the IEP as
it stood. After the October meeting, the School District again
requested by letter that Mrs. Lessard delineate in writing her
objections to the proffered IEP. No such delineation ensued.
Persistent scheduling conflicts prevented the
protagonists from reconvening until December 2. At that time, the
School District presented a new version of the IEP, which contained
both the now-vetted behavioral plan as well as a full-blown
transition plan (that is, a plan designed to transition the
disabled child into independent, adult life). Mrs. Lessard refused
to sign the December IEP, complaining that the team had yet to
"develop[]" the IEP. This reaction prompted the School District to
invoke its right to a due process hearing, see N.H. Code Admin. R.
Ann. Ed. 1125.05(c) (2007), as a means of determining the
suitability of the recently submitted IEP.
That hearing took place over two days, during which eight
members of the IEP team testified on behalf of the School District.
In rebuttal, the parents introduced the expert testimony of a
reading specialist and a physical therapist; another literacy
expert (Dr. Kemper) testified solely through the medium of written
findings. In a decision dated March 22, 2005, the state hearing
officer ruled that the December IEP suffered from neither
procedural nor substantive faults. He therefore ordered it placed
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into effect and denied the parents' cross-petition for compensatory
education and other relief.
The Lessards rejoined by filing an action in the United
States District Court for the District of New Hampshire. See 20
U.S.C. § 1415(i)(2). Their suit raised the same procedural and
substantive objections that had been advanced in the due process
hearing and sought compensatory education for the alleged
deprivation of the free appropriate public education (FAPE) owed to
Stephanie Lessard under the IDEA. The suit added a claim that the
administrative hearing, as conducted, violated the Lessards'
procedural due process rights.
In the court case, Mrs. Lessard — who had declined to
testify before the state hearing officer — took the witness stand;
otherwise, the evidence before the district court largely
replicated the evidence in the administrative record. The district
court found no fault with the conduct of the administrative
hearing, upheld the hearing officer's findings and conclusions, and
denied the Lessards' requests for relief. See Lessard, 2007 WL
1221103, at *11.
The Lessards, qua appellants, prosecuted this timely
appeal. Before us, they do not challenge the district court's
resolution of their procedural due process claim. They do,
however, press the other objections that were raised below.
-6-
II. THE STATUTORY SCHEME
The IDEA declares that, as a condition for receiving
federal funds, states must provide all disabled children with a
FAPE. See 20 U.S.C. §§ 1401(8), 1412(a)(1)(A). The primary
vehicle for delivery of a FAPE is the child's IEP. The IEP must
include, at a bare minimum, the child's present level of
educational attainment, the short- and long-term goals for his or
her education, objective criteria with which to measure progress
toward those goals, and the specific services to be offered. See
id. § 1414(d)(1)(A); Lenn v. Portland Sch. Comm., 998 F.2d 1083,
1086 (1st Cir. 1993).
An IEP is subject to both procedural and substantive
requirements. Those requirements can flow from either federal or
state law (at least to the extent that the latter is not
incompatible with the former). See Roland M. v. Concord Sch.
Comm., 910 F.2d 983, 987 (1st Cir. 1990).
As an example of a federally-imposed procedural
requirement, the IDEA specifically confers upon parents a right to
be part of the "IEP team," that is, the group of individuals
charged with formulating a particular child's IEP and which
comprises educational professionals who either possess specialized
knowledge about or will be involved in the child's education. See
20 U.S.C. § 1414(d)(1)(B). An example of a state-imposed
procedural requirement is the New Hampshire regulation stipulating
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that parents must annually consent to and sign their child's IEP.
See N.H. Code Admin. R. Ann. Ed. 1125.04(a)(3) (2007); cf. 20
U.S.C. § 1415(b)(3) (imposing the lesser requirement that the
school district give notice to the parents of proposed changes to
an extant IEP). Federal and state law converge in demanding that
an IEP be in effect by the commencement of the school year. See 20
U.S.C. § 1414(d)(2)(A); 34 C.F.R. § 300.342(a) (2000); N.H. Code
Admin. R. Ann. Ed. 1109.08(c) (2007).
There is no mechanical checklist by which an inquiring
court can determine the proper content of an IEP; "IEPs are by
their very nature idiosyncratic." Me. Sch. Admin. Dist. No. 35 v.
Mr. & Mrs. R., 321 F.3d 9, 20 (1st Cir. 2003). One thing is clear:
the substance of an IEP must be something different than the normal
school curriculum and something more than a generic, one-size-fits-
all program for children with special needs. In the Supreme
Court's phrase, an IEP must be "individually designed to provide
educational benefit to [a particular] handicapped child." Hendrick
Hudson Bd. of Educ. v. Rowley, 458 U.S. 176, 201 (1982).
It is worth emphasizing that the obligation to devise a
custom-tailored IEP does not imply that a disabled child is
entitled to the maximum educational benefit possible. See id. at
206-08; C.G. v. Five Town Cmty. Sch. Dist., ___ F.3d ___, ___ (1st
Cir. 2008) [No. 07-1708, slip op. at 9]; Lt. T.B. v. Warwick Sch.
Comm., 361 F.3d 80, 83 (1st Cir. 2004). An IEP need only supply
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"some educational benefit," not an optimal or an ideal level of
educational benefit, in order to survive judicial scrutiny. Mr. &
Mrs. R., 321 F.3d at 11; see Roland M., 910 F.2d at 992.
Serial review mechanisms present the means for enforcing
these procedural and substantive rights. By statute, parents may
file a complaint with the state educational agency, which must
convene a hearing (sometimes called a "due process hearing") to
pass upon the adequacy of a proposed IEP. 20 U.S.C. § 1415(f).
Under New Hampshire law, the School District also may pursue a due
process hearing to test the validity of a proposed IEP. See N.H.
Code Admin. R. Ann. Ed. 1125.05(c) (2007). Either side may then
appeal from the hearing officer's final decision to either a
federal or state court of competent jurisdiction. 20 U.S.C. §
1415(i)(2)(A).
III. THE STANDARD OF REVIEW
In reviewing the hearing officer's decision, the district
court is tasked with determining the IEP's appropriateness on the
basis of the preponderance of the evidence. See id. §
1415(i)(2)(B). Judges are not trained pedagogues, and they must
accord deference to the state agency's application of its
specialized knowledge. See Renner v. Bd. of Educ. of Pub. Schs. of
Ann Arbor, 185 F.3d 635, 641 (6th Cir. 1999) (remarking that
"federal courts are generalists with no expertise in the
educational needs of handicapped children") (citation and internal
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quotation marks omitted); see also González v. P.R. Dep't of
Educ., 254 F.3d 350, 352 (1st Cir. 2001) (noting that a district
court, faced with conflicting expert testimony anent educational
placement, may justifiably feel "bound to affirm" the state
agency's determination). As a result, judicial review falls
somewhere between the highly deferential clear-error standard and
the non-deferential de novo standard. See Roland M., 910 F.2d at
989; see also Nack v. Orange City Sch. Dist., 454 F.3d 604, 609
(6th Cir. 2006) (observing that district court may give some
deference to the fact findings of the hearing officer, especially
when educational expertise is essential to the findings).
In this case, the district court appropriately engaged in
a bounded, independent review of the state hearing officer's
decision, see, e.g., Hampton Sch. Dist. v. Dobrowolski, 976 F.2d
48, 53 (1st Cir. 1992), giving due deference to the hearing
officer's determinations. Because the court's findings and
conclusions are consistent with those of the hearing officer, we
for the most part abjure separate reference to the hearing
officer's decision and focus on the decision of the district court.
With respect to that decision, we grant its factual
findings the deference implicit in clear-error review, see
González, 254 F.3d at 352, while evaluating its answers to abstract
questions of law de novo, see Five Town, ___ F.3d at ___ [slip op.
at 7]. Determinations as to an IEP's appropriateness and adequacy
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present mixed questions of law and fact. These questions are
handled on a degree-of-deference continuum, and the exact standard
of review depends on whether and to what extent a particular
determination is law- or fact-dominated. See id. at ___ [slip op.
at 8]; Mr. I. v. Me. Sch. Admin. Dist. No. 55, 480 F.3d 1, 10 (1st
Cir. 2007). Absent an error of law, we will reverse only if the
district court's determination, when seen in light of the record as
a whole, is clearly erroneous. See Lt. T.B., 361 F.3d at 84;
Roland M., 910 F.2d at 990-91.
IV. ANALYSIS
The appellants raise both procedural and substantive
objections to the decision below. Their procedural objection rests
on an allegation that the district court improperly excused the
School District's delay in proffering a completed IEP. Their
substantive objection has twin foci: first, they assert that the
district court used an incorrect standard in evaluating the IEP;
second, they assert that the final version of the IEP failed to
provide for adequate literacy, transition, and behavioral services.
We address these objections sequentially.
A. The Procedural Objection.
The appellants claim that the August IEP was incomplete
and that the December IEP was so tardy as to constitute a per se
denial of Stephanie's right to a FAPE. In mounting this argument,
they emphasize the IDEA's requirement that "[a]t the beginning of
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each school year, each local educational agency . . . shall have in
effect, for each child with a disability in its jurisdiction, an
individualized education program." 20 U.S.C. § 1414(d)(2)(A).
This assault depends entirely on the alleged
incompleteness of the August IEP. That allegation is grounded on
two perceived shortcomings in that document: the truncated
transition plan and the absence of a behavioral plan. The
appellants contend that these shortcomings eloquently attest that
the August IEP offered Stephanie only a fraction of what she was
entitled to receive.
This contention substantially misconceives what the IDEA
requires. The transition plan contained in the August IEP consists
solely of background information and performance goals, and
suddenly ends mid-sentence. That is hardly a full-fledged
transition plan. The rub, however, is that the IDEA does not
require a stand-alone transition plan as part of an IEP.
Sections 1414(d)(1)(A)(vii)(I) and (II), reproduced in
the margin,3 require that IEPs contain statements of transition
3
That statute provides in pertinent part that an IEP must
include:
(I) beginning at age 14, and updated annually, a
statement of the transition service needs of the child
under the applicable components of the child's IEP that
focuses on the child's courses of study (such as
participation in advanced-placement courses or a
vocational education program); [and] (II) beginning at
age 16 (or younger, if determined appropriate by the IEP
Team), a statement of needed transition services for the
child, including, when appropriate, a statement of the
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services. But neither section requires that those statements be
articulated in a separate component of the IEP. In fact, section
1414(d)(1)(A)(vii)(I) specifically contemplates the inclusion of
statements of transition services "under the applicable components
of the child's IEP." Thus, merely pointing to the absence of a
stand-alone transition plan cannot form the basis for a founded
claim of procedural error.
To be sure, the statutory provisions quoted in the margin
implicitly acknowledge that transition services must be provided to
disabled children who need them, in accordance with the Rowley
standard. See, e.g., Browell v. Lemahieu, 127 F. Supp. 2d 1117,
1126 (D. Haw. 2000). Here, however, the appellants have made no
claim that the August IEP lacks sufficient transition services
(which, in fact, are integrated throughout the IEP's various
components). We thus reject the "transition plan" claim of error.
An even more egregious misunderstanding of the IDEA's
requirements undermines the claim of procedural error based on a
missing behavioral plan. The IDEA only requires a behavioral plan
when certain disciplinary actions are taken against a disabled
child. See 20 U.S.C. §§ 1415(k)(1)(A) & (B)(I); see also Alex R.
v. Forrestville Valley Sch. Dist., 375 F.3d 603, 614 (7th Cir.
interagency responsibilities or any needed linkages; . .
.
20 U.S.C. § 1414(d)(1)(A)(vii).
-13-
2004). The appellants make no claim that the necessary
disciplinary predicate had transpired in this instance.
The other statutory provision cited by the appellants —
20 U.S.C. § 1414(d)(3)(B)(I) — also falls short of requiring a
behavioral plan as an ubiquitous feature in every IEP. That
statute, in terms, directs IEP teams to "consider, when
appropriate," formulating such plans. The record is pellucid that,
by the time the August IEP was prepared, the IEP team already had
considered and formulated a behavioral plan but had opted not to
include it in the IEP pending Crotched Mountain's approval.
In a last-ditch effort to turn the tide, the appellants
call our attention to a federal regulation, 34 C.F.R. § 300.346(c)
(2000), which states: "If . . . the IEP team determines that a
child needs a particular device or service (including an
intervention, accommodation, or other program modification) in
order for the child to receive FAPE, the IEP team must include a
statement to that effect in the child's IEP." Although such a
regulation is entitled to judicial deference, see Greenland Sch.
Dist. v. Amy N., 358 F.3d 150, 161 (1st Cir. 2004), this regulation
did not require the August IEP to encompass a behavioral plan,
merely to consider formulating one. Here, the IEP team mulled the
matter and determined that a behavioral plan was not necessary in
order to afford Stephanie a FAPE. No more was exigible.
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That effectively ends this aspect of the matter. We
conclude, without serious question, that the district court did not
err in finding that the absence of either a transition or
behavioral plan did not constitute a procedural defect within the
meaning of the IDEA.
Once it is determined that the August IEP was complete,
the appellants' argument quickly unravels. All that remains is the
lack of a signed IEP at the start of the school year. But even in
a regime in which parental assent is required before an IEP can
become effective, it cannot be that a school system transgresses
the IDEA whenever a parent — for whatever reason — refuses to sign
a completed IEP before the school year commences. Otherwise,
school systems would be at the mercy of obdurate parents — a result
plainly at odds with the collaborative relationship fostered by the
IDEA framework. See, e.g., Five Town, ___ F.3d at ___ [slip op. at
10] ("The development of an IEP is meant to be a collaborative
project."); MM v. Sch. Dist. of Greenville County, 303 F.3d 523,
535 (4th Cir. 2002) (explaining that "it would be improper to hold
[a] School District liable for the procedural violation of failing
to have the IEP completed and signed, when that failure was the
result of [the parents'] lack of cooperation") (citation and
internal quotation marks omitted). Consequently, a parent's
obstruction of the IEP process, caused by his or her unreasonable
delay in acting upon a completed IEP, can relieve a school system
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from its obligation to have an assented-to IEP in place at the
start of the school year. See Doe v. Defendant I, 898 F.2d 1186,
1189 (6th Cir. 1990); see also Roland M., 910 F.2d at 995 ("The law
ought not to abet parties who block assembly of the required team
and then, dissatisfied with the ensuing IEP, attempt to jettison it
because of problems created by their own obstructionism.").
The case at bar presents a paradigmatic example of a
situation in which a delay in having a signed IEP in place is
fairly laid at the parents' doorstep. On August 16, the School
District presented Stephanie's mother with a completed IEP that
covered every essential component. From that point forward, the
record discloses a consistent pattern in which the School District
would strive to identify the parents' specific concerns and the
parents would refuse to say more than that they wanted further
meetings. The School District made numerous attempts to arrange
such meetings and succeeded in holding two extended sessions with
Stephanie's mother. These meetings proved fruitless: the most that
could be gleaned from Mrs. Lessard was her opinion that the
proffered IEP was, for some unexplained reason, still "in the
developing stage."
Given this mise-en-scène, we can discern no clear error
in the district court's conclusion that whatever delays plagued the
signing of Stephanie's 2004-2005 IEP were the product of her
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mother's own intransigence.4 See Lessard, 2007 WL 1221103, at *7.
Those delays, in turn, justified the court in exonerating the
School District with respect to the IEP's late implementation. The
interactive process constructed by Congress was not intended to
deal a trump card to parents bent on prolonging IEP negotiations
indefinitely. See MM, 303 F.3d at 535.
The appellants object to this finding, citing our
remonstrances in Mr. & Mrs. R.. There, we cautioned that "[i]n
mounting a challenge to a current or proposed IEP, the most that
parents can be expected to do is to point out areas in which the
IEP is deficient." 321 F.3d at 20. The appellants suggest that,
under this precept, they cannot be faulted for having failed to
respond to the School District's requests for insight. This
suggestion is baseless.
Line-drawing is often difficult, and in the IEP context
it is impossible to draw a precise line separating healthy requests
for parental input from impermissible demands that parents do the
school system's work. Here the record leaves no doubt as to where
along that continuum the present case falls. When the School
District contacted Stephanie's mother following her rejection of
4
We emphasize that the August IEP was complete, and there is
no evidence that the appellants' refusal to sign it interfered with
Stephanie's receipt of a FAPE (at bottom, they argued only that the
absence of a signature constituted a per se violation of the IDEA's
requirements). Indeed, during the appellants' negotiations with
the other members of the IEP team, the 2003-2004 IEP continued to
be fully implemented.
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the August IEP, it asked her to "state specifically what you agree
or disagree with." Such an entreaty, which the School District
essentially repeated in letters of inquiry sent to her on August
25, October 24, November 16, and November 30, respectively, strikes
us as the functional equivalent of a request to point out
deficiencies in an IEP.
B. The Substantive Objections.
We turn next to the appellants' substantive objections,
which are addressed to the December IEP. We subdivide this
discussion into four segments to match the appellants'
asseverational array.
1. Incorrect Legal Standard. The appellants insist that
the lower court erred by applying an incorrect legal standard.
Specifically, they argue that, in the area of transition services,
the Rowley standard has been supplanted by the 1997 amendments to
the IDEA, see IDEA Amendments for 1997, Pub. L. No. 105-17, 111
Stat. 37, but the court failed to recognize this development.
To put this argument into perspective, we start with the
Rowley Court's mandate that IEP components must be "reasonably
calculated to enable the child to receive educational benefits."
458 U.S. at 207. The appellants contend that Congress, in 1997,
raised the bar for IEP transition services, directing that those
services must result in actual and substantial progress toward
integrating disabled children into society.
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Existing precedent forecloses this contention. In Lt.
T.B., the parents advanced a similar though slightly more ambitious
thesis; they posited that, given Congress's statement of goals, the
1997 amendments must have replaced the Rowley standard across the
board with a requirement that an IEP furnish a disabled child with
the "maximum benefit" available. 361 F.3d at 83. We flatly
rejected that thesis, noting that it had no support in the text of
the amendments and that no other court of appeals, post-1997, had
exhibited a willingness to scuttle the Rowley standard. Id. For
aught that appears, the decision in Lt. T.B. remains good law.5
To the interpretive mix presented in Lt. T.B., the
appellants add only an allusion to the amendments' definition of
"transition services." In relevant part, the amendments defined
that term to mean "a coordinated set of activities for a student
with a disability that is designed within an outcome-oriented
process, which promotes movement from school to post-school
activities." 20 U.S.C. § 1401(30)(A). The appellants theorize
that an "outcome-oriented process" must mean a process that
actually achieves substantial progress toward that outcome and,
5
In arguing for a contrary result the appellants rely on two
cases. Neither decision is persuasive. The first is an
unpublished district court decision, J.L. v. Mercer Island Sch.
Dist., 2006 WL 3628033 (W.D. Wash. Dec. 8, 2006). The reasoning of
that decision is unconvincing and we decline to follow it. The
second, Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 861-64
(6th Cir. 2004), purports to construe the original Rowley standard.
The opinion is, therefore, inapposite.
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thus, the 1997 amendments must to this extent have superseded the
Rowley standard.
The appellants read far too much into Congress's 1997
definition of transition services. It seems obvious to us that the
word "process" denotes a praxis or procedure; it does not imply a
substantive standard or a particular measure of progress. The
adjectival phrase "outcome-oriented" is similarly agnostic with
respect to ultimate results; it specifies the perspective that
participants in the process should strive to attain but does not
establish a standard for evaluating the fruits of that process.
For these reasons, we decline the appellants' invitation
to defenestrate the Rowley standard. The district court did not
apply an incorrect legal rule in evaluating the adequacy of the
transition services limned in Stephanie's final IEP.
2. Literacy. The appellants' next claim relates to
Stephanie's proposed reading program. In their view, the School
District's literacy methodology produced a level of progress
categorically beneath what their daughter was capable of attaining.
Since superior methodologies were readily available (in particular
the LiPS system advocated by Dr. Kemper), the School District's
chosen methodology denied Stephanie a FAPE.
It is difficult to prevail on a claim of this nature.
The Supreme Court has pointed out with conspicuous clarity that the
IDEA confers primary responsibility upon state and local
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educational agencies to choose among competing pedagogical
methodologies and to select the method most suitable to a
particular child's needs. Rowley, 458 U.S. at 207. Then-Justice
Rehnquist, writing for the majority, added that "it seems highly
unlikely that Congress intended courts to overturn a State's choice
of appropriate educational theories in a proceeding conducted
pursuant to [the IDEA]." Id. at 207-08. After all, courts lack
the "specialized knowledge and experience" needed to resolve
"persistent and difficult questions of educational policy." Id. at
208 (citation and internal quotation marks omitted). Thus, "once
a court determines that the requirements of the [IDEA] have been
met, questions of methodology are for resolution by the States."
Id.
Rowley sends a very clear message. The short of it is
that courts are entrusted with ascertaining the adequacy of an
IEP's educational components but not with weighing the comparative
merit of the components when stacked against other heuristic
methods. See, e.g., Lt. T.B., 361 F.3d at 86; G.D. v. Westmoreland
Sch. Dist., 930 F.2d 942, 948 (1st Cir. 1991).
In an effort to expand the scope of judicial
intervention, the appellants resort to an esoteric definition of
"appropriate educational theories," which they equate with theories
that produce results. They do not contest that the IEP favored a
standard, multisensory reading methodology. Nevertheless, they
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argue that since Dr. Kemper concluded that Stephanie had progressed
very little under that methodology, it was, a fortiori,
"inappropriate."
This construct inverts the rule of decision. Actual
educational progress can (and sometimes will) demonstrate that an
IEP provides a FAPE. See, e.g., Rowley, 458 U.S. at 209-10; Nack,
454 F.3d at 612; see also Roland M., 910 F.2d at 991 (explaining
that "actual educational results are relevant to determining the
efficacy of educators' policy choices"). But to impose the inverse
of this rule — that a lack of progress necessarily betokens an
IEP's inadequacy — would contradict the fundamental concept that
"[a]n IEP is a snapshot, not a retrospective." Roland M., 910 F.2d
at 992. Where, as here, a school system develops an IEP component
in reliance upon a widely-accepted methodology, an inquiring court
ought not to condemn that methodology ex post merely because the
disabled child's progress does not meet the parents' or the
educators' expectations. See Lachman v. Ill. St. Bd. of Educ., 852
F.2d 290, 297 (7th Cir. 1988).
If more were needed — and we doubt that it is — we remark
the district court's finding that Stephanie had been making
reasonable progress in reading. See Lessard, 2007 WL 1221103, at
*8. That finding is fully supportable: in his testimony at the due
process hearing, Stephanie's reading teacher painted a far more
positive picture than did Dr. Kemper, testifying that Stephanie had
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been making steady headway. The hearing officer and the district
court were entitled to accept that assessment. After all, levels
of progress must be judged with respect to the potential of the
particular child. Polk v. Cent. Susquehanna Intermed. Unit 16, 853
F.2d 171, 185 (3d Cir. 1988). So here: while the reported progress
is modest by most standards, it is reasonable in the context of
Stephanie's manifold disabilities and low IQ.
That disposes of the literacy-related claim. On this
record, we are compelled to conclude that, in the subject area of
reading, the proffered IEP afforded Stephanie educational benefits
consistent with a FAPE.
3. Transition Services. The appellants voice
dissatisfaction with the transition services component of the
December IEP. They claim that this component was too generic and
that a personalized IEP tailored to Stephanie's needs would
necessarily have contained "relatively intense services in
community-based settings to prepare her to be a contributing member
of society." Appellants' Br. at 43. They acknowledge that the IEP
provided for monthly field trips into the community, but aver that
those trips were inadequate because behavior problems often
prevented Stephanie from participating in them.
In our estimation, the district court did not clearly err
in finding the panoply of transition services adequate. See
Lessard, 2007 WL 1221103, at *9. In addition to the scheduled
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field trips, the December IEP incorporated a wide array of other
transition services. These included six hours of pre-vocational
training each week and regular instruction in specific transition-
related skills (such as using a telephone, identifying workers in
community settings, maintaining proper self-hygiene, and preparing
food). This regimen apparently had some efficacy; the district
court found that Stephanie's transition skills were improving. See
id.
In an effort to blunt the force of this reasoning, the
appellants argue that a specific service — activities conducted in
community settings — failed adequately to provide educational
benefits in an important area of need. Though artfully framed,
this argument fails for two reasons. First, in considering the
adequacy of a myriad of transition services, an inquiring court
must view those services in the aggregate and in light of the
child's overall needs. See, e.g., Rettig v. Kent City Sch. Dist.,
788 F.2d 328, 332 (7th Cir. 1986). The test is whether the IEP,
taken in its entirety, is reasonably calculated to enable the
particular child to garner educational benefits. See id.; Karl v.
Bd. of Educ. of Geneseo Cent. Sch. Dist., 736 F.2d 873, 877 (2d
Cir. 1984). Were the law otherwise, parents could endlessly parse
IEPs into highly particularized components and circumvent the
general rule that parents cannot unilaterally dictate the content
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of their child's IEP. See Rowley, 458 U.S. at 207-08; Lachman, 852
F.2d at 297.
The second reason why the appellants' argument founders
is that the district court concluded that the extant community-
oriented services, when evaluated in conjunction with the IEP's
other transition services, furnished Stephanie with the requisite
educational benefit. Lessard, 2007 WL 1221103, at *9. This
finding is not clearly erroneous. While we can accept the
possibility that monthly field trips might not be an ideal service
component given Stephanie's needs, the IDEA does not require an
ideal or optimal IEP, simply an adequate one. See Five Town, ___
F.3d at ___ [slip op. at 9]; Lenn, 998 F.2d at 1086.
4. Behavioral Plan. The appellants' last substantive
objection focuses on the supposed inadequacy of the IEP's
behavioral plan. This objection fails for reasons already
discussed: no behavioral plan is required for purposes of this IEP.
See supra Part IV(A); see also Alex R., 375 F.3d at 614.
V. CONCLUSION
Many judges are parents too, and we can admire the
determination with which the appellants have pursued the best
possible education for their profoundly disabled daughter. That is
as it should be. See Rowley, 458 U.S. at 209 (predicting that
parents "will not lack ardor in seeking to ensure that handicapped
children receive all of the benefits to which they are entitled by
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the Act"). But determination must be tempered by an understanding
that school districts, like parents and children, have legal rights
with respect to special education. In demanding more than the IDEA
requires, the appellants frustrated the operation of a
collaborative process and put the School District in an untenable
position. Under the circumstances, the School District cannot be
faulted either for the timing of the resultant IEP or for its
substance.
We need go no further. For the reasons elucidated above,
we affirm the district court's conclusion that the School District
acted in conformity with its responsibilities under the IDEA.
Consequently, we descry no basis for granting the appellants'
prayer for compensatory education or other redress.
Affirmed.
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