Johnson v. Boston Public Schools

United States Court of Appeals
For the First Circuit

No. 16-2122

NICOLE JOHNSON, Parent; NS, Minor,

Plaintiffs, Appellants,

v.

BOSTON PUBLIC SCHOOLS; BUREAU OF SPECIAL EDUCATION APPEALS,

Defendants, Appellees,

EILEEN NASH; LYNN GRAHAM O'BRIEN; JOAN CURRAN; LITA O'MALLEY;
JEREMIAH FORD; MARCIE GOLDOWSKI; ELIZABETH DRAKE; REBECCA HART;
TERELLE CLARK; SUE GIBBONS; JENNIFER HARRIS; DENISE ENG;
CHILDREN'S HOSPITAL; MELISSA BROWN; THOMAS CHANG, Superintendent
of Schools for the City of Boston; ANDREA ALVES-THOMPSON; ANN
MARIA ACCOMANDO,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Allison D. Burroughs, U.S. District Judge]

Before

Lynch, Stahl, and Thompson,
Circuit Judges.

Michael C. Walsh, on brief for appellants.
Eugene L. O'Flaherty, Corporation Counsel, with whom Karen G.
Castrada, Assistant Corporation Counsel, on brief for appellee
Boston Public Schools.
 Maura Healey, Attorney General, with whom Bryan Bertram,
Assistant Attorney General, on brief for appellee Bureau of Special
Education Appeals.

October 12, 2018
 STAHL, Circuit Judge. Plaintiff-Appellant Nicole

Johnson, acting on behalf of her minor child ("N.S."), initiated

a proceeding before the Massachusetts Bureau of Special Education

Appeals ("BSEA") pursuant to the Individuals with Disabilities

Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq. Johnson sought,

inter alia, placement for N.S. in a school outside of the Boston

Public Schools ("BPS") system. The hearing officer ultimately

ruled against all of Johnson's claims in a proceeding she now

contends was tainted by multiple errors. On review, the district

court upheld this determination and granted summary judgment to

Defendants-Appellees BPS and the BSEA. We affirm.

I. Statutory Framework and Factual Background

A.

We begin by describing the statutory framework of the

IDEA, which provides necessary context for understanding the

factual and procedural history at issue. The IDEA offers states

partial federal funding for special education of children with

qualifying disabilities. 20 U.S.C. § 1412(a). In exchange,

states receiving IDEA funds commit to providing all of those

disabled children within their jurisdiction "a free appropriate

public education ('FAPE') in the least restrictive environment

possible." Sebastian M. v. King Philip Reg'l Sch. Dist., 685 F.3d

79, 81 (1st Cir. 2012) (citing 20 U.S.C. § 1412(a)(1), (5)). A

FAPE must include both "specially designed instruction, at no cost

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to parents, to meet the unique needs of a child with a disability"

and "such developmental, corrective, and other supportive services

. . . as may be required to assist a child with a disability to

benefit from special education." 20 U.S.C. § 1401(9), (26), (29).

"If a school system is unable to furnish a disabled child with a

FAPE through a public school placement, it may be obliged to

subsidize the child in a private program." D.B. ex rel. Elizabeth

B. v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012) (quotation marks

and citation omitted).

"The primary vehicle for delivery of a FAPE" is an

Individualized Education Program ("IEP"). Id. (internal quotation

marks and citations omitted). "An IEP must be custom-tailored to

suit a particular child," Sebastian M., 685 F.3d at 84 (citation

omitted), and must be "reasonably calculated to enable a child to

make progress appropriate in light of the child's circumstances,"

Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, -

- U.S. -, 137 S. Ct. 988, 999 (2017). An IEP need not, however,

offer the student "an optimal or an ideal level of educational

benefit[.]" Lessard v. Wilton Lyndeborough Coop. Sch. Dist.

(Lessard I), 518 F.3d 18, 23-24 (1st Cir. 2008) (citations

omitted).

While the IDEA envisions a process in which parents,

educators, specialists, and others collaborate to develop the IEP,

it also contains dispute resolution mechanisms for parents who are

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dissatisfied with some element of the IEP. This includes both a

formal mediation process, 20 U.S.C. § 1415(e), and, separately, an

"impartial due process hearing" held before a designated state or

local education agency, id. § 1415(f).1 In Massachusetts, these

processes take place before the BSEA. See 603 Mass. Code Regs.

28.08.

Finally, parents may bring a civil action challenging

the outcome of the due process hearing in either state or federal

court. 20 U.S.C. § 1415(i)(2)(A); 603 Mass. Code Regs. 28.08(6).

B.

What follows is the factual and procedural history of

the case "as supportably found by the district court," Sebastian

M., 685 F.3d at 82, focusing on the facts necessary to adjudicate

this appeal.2

Johnson is the mother of N.S., a young male afflicted

with significant deafness. Although N.S. has a cochlear implant

to assist with his hearing, nonetheless his hearing remains

1
The Code of Massachusetts Regulations explicitly states that
the due process hearing need not be preceded by a mediation. 603
Mass. Code Regs. 28.08(4)(b).
2The district court, in turn, relied largely on the BSEA's
Findings of Fact, noting that "[n]either party has raised any
objection to the Hearing Officer's factual findings, and both
parties have relied upon these findings in their respective
filings . . . ." Johnson v. Bos. Pub. Sch., 201 F. Supp. 3d 187,
192 n.1 (D. Mass. 2016).

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substantially impaired. The parties do not dispute that N.S.'s

disability places him within the coverage of the IDEA.

Beginning at age three and continuing for roughly two-

and-a-half years, N.S. attended the Horace Mann School for the

Deaf ("Horace Mann"), a public school in the BPS system. Several

evaluations conducted near the time that N.S. initially enrolled

at Horace Mann concluded that N.S.'s language skills were

"significantly delayed" for his age. One of these reports noted

that N.S. did not use words or word approximations or demonstrate

signs of understanding spoken language, and placed his language

abilities "at the 20 to 21 month level." Two of the evaluations

recommended instruction that incorporated both American Sign

Language ("ASL")3 and spoken communication.

N.S.'s IEP team first met in October 2011 to devise a

plan for the 2011-12 school year. The resulting plan called for

N.S. to be placed in a "substantially separate classroom . . .

taught by a teacher for the deaf," and for instruction using both

ASL and spoken English. Pursuant to Johnson's wishes, the goal of

the IEP was for N.S. "to be mainstreamed . . . .[,] preferably in

a parochial school."

3Comments by educators, clinicians, and others in the record
refer variously to ASL, "sign language," "signing," and other,
similar terms. For accuracy, we use the terms as they appear in
the record.

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 N.S.'s IEP team met again roughly one year later to

update the IEP for the 2012-13 school year. See 20

U.S.C. § 1414(d)(4)(A) (requiring review and revision as needed of

IEP at least annually). The IEP noted several areas in which N.S.

had improved during the previous year, including his

identification of a small number of letters and numbers,

understanding of some "simple, one-step directions when given in

sign and speech within a contextual situation," and consistent

detection of various sounds. These improvements notwithstanding,

the team observed that N.S.'s language continued to lag

significantly behind his age. The updated IEP recommended

instruction in sign-supported spoken English and in ASL at Horace

Mann as well as occupational therapy.

N.S.'s teachers and treating therapists reported that he

made additional progress during the 2012-13 school year, including

"spontaneously signing" some words, naming classmates and teachers

in sign language, imitating words in sign, and attempting to

approximate speech. Around the same time, clinicians at Boston

Children's Hospital similarly observed that N.S. was beginning to

express himself through signing, though he was "not yet speaking

with clearly articulated speech," and scored N.S.'s receptive

language skills at the two-year, two-month-old level. The

Children's Hospital report urged continued use of "a combination

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of spoken and signed language" to facilitate N.S.'s linguistic

growth.

Despite this reported progress, Johnson informed the IEP

team that she wished to limit N.S.'s instruction to sign-supported

spoken English — excluding ASL instruction — as N.S.'s family did

not use sign language at home. Although expressing concern about

the request, in April of 2013 the IEP team modified the 2012-13

IEP to reflect Johnson's preference.

While progress reports for the period between January

and June 2013 indicate that N.S.'s ability to communicate continued

to improve, his progress was slow and the IEP team recommended

that N.S. repeat kindergarten. Johnson rejected this

recommendation, instead requesting that N.S. be promoted and

placed in a class without "peers who used ASL or who had []

disabilities" other than hearing impairment. The administrative

record indicates that Horace Mann expressed concern that it "did

not have a class that met [Johnson's] demands."

In June 2013, N.S. lost his speech processor, a component

of his cochlear implant that assists with processing sound, and it

was not replaced for five months. Evaluations prior to, during,

and after that period note N.S.'s inconsistent use of the device

and stressed the importance to his linguistic development of using

the processor regularly.

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 These and other interactions with Johnson found in the

administrative record show numerous statements by educators and

clinicians reporting that N.S.'s progress was negatively affected

by Johnson's intransigent opposition to the use of ASL and, later,

sign-supported spoken English in N.S.'s education and at home, his

inconsistent use of the cochlear processor, difficulty contacting

Johnson, and her apparent lack of follow-up on appointments with

and recommendations given by various hearing and speech

specialists.

N.S. underwent an unscheduled speech and language

evaluation in October 2013 to address Johnson's continuing

concerns that N.S.'s spoken English skills were not advancing at

a sufficient rate. This evaluation included a comparison of N.S.'s

receptive and expressive language abilities using both spoken

English only and sign-supported spoken English. The receptive

language assessments in particular found that, when using sign-

supported English, "given the use of single word signs, [N.S.'s]

ability to understand vocabulary words [was] similar to that of

same aged, hearing peers." Using sign-supported spoken English,

he also apparently demonstrated some ability to understand

negatives in sentences, make inferences, understand the use of

objects, and follow commands without the use of gestural cues, and

to understand some higher level academic skills. In contrast,

during the spoken English assessment, N.S.'s correct

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identification of vocabulary words was "similar to chance" and the

evaluator was not able to establish a baseline for testing of other

concepts. Altogether, the evaluation concluded that N.S.'s

linguistic abilities continued to be "significantly delayed," with

scores on the various tests administered ranging from "severely

impaired to average." As a result, the evaluator recommended that

N.S. continue to receive instruction in both spoken and sign-

supported spoken English as well as speech and language therapy.

Other evaluations conducted at the same time likewise recommended

that N.S. continue to receive instruction in sign-supported spoken

English as well as spoken English.

Following the unscheduled evaluation, N.S.'s IEP team

offered to amend the IEP to provide, inter alia, additional

language therapy and other "direct services" while keeping N.S. at

Horace Mann. Johnson rejected this proposal and, separately,

proceeding pro se sought a hearing before the BSEA to challenge

the 2013-14 IEP. Johnson sought out-of-district placement in a

program focused solely on spoken English and reiterated her

position that Horace Mann had inappropriately placed N.S. in

classes with students with disabilities other than hearing loss.

BSEA initially scheduled a hearing for November 2013, but postponed

the hearing on several occasions.

In December 2013, progress reports from Horace Mann

indicated that N.S.'s language skills improved in a number of

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areas, including construction of sentences and responses in spoken

English, identification of letters, and writing. Johnson herself

acknowledged these improvements in a letter thanking N.S.'s

teacher. However, a Children's Hospital report from the same time

frame indicated that N.S.'s language skills remained extremely

limited and below age-level expectations.

Tensions between Johnson and Horace Mann expanded beyond

disagreements regarding N.S.'s educational program. Following her

February 2014 altercation with the vice principal, Johnson ceased

sending N.S. to Horace Mann and eventually withdrew him from the

school altogether. Thereafter, Johnson obtained an itinerant

student number for N.S., allowing him to continue to receive

services "consistent with his IEP."4 Johnson, 201 F. Supp. 3d at

196.

At Johnson's request, the Clarke School for Hearing and

Speech ("Clarke") performed an independent evaluation of N.S. in

March 2014. That assessment indicated that N.S.'s performance was

"consistent with a child who was just implanted" with a cochlear

device, and concluded that his "present level of language [was] .

. . insufficient to allow for adequate academic development." The

4
Given that Johnson had rejected the proposed IEP for 2013-
14, it is not clear from the record which IEP was operative at
this time. The itinerant student designation did, however, allow
N.S. to receive 11 auditory, speech, and language therapy sessions
at the Clarke School for Hearing and Speech during the summer of
2014.

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report attributed delays in linguistic skills to "a combination of

factors: his inconsistent use of his cochlear implant . . . ,

inconsistent expectations regarding mode of communication,

maladaptive behaviors and limited spoken or sign language skills."

In May 2014, N.S.'s IEP team amended its proposed plan

in response to the Clarke evaluation, increasing the therapy and

training already provided to N.S. and honoring Johnson's request

to place N.S. in a classroom in which spoken English would be the

primary language of instruction. BPS also funded auditory, speech,

and language services to compensate for those missed between N.S.'s

departure from Horace Mann and the end of the 2013-14 school year.

Johnson, dissatisfied with BPS's offer, amended her BSEA hearing

request to include a claim for compensatory services and other

monetary damages.

C.

Beginning in June 2014, Johnson and BPS attempted to

resolve their dispute regarding (1) N.S.'s educational placement;

and (2) compensatory services beyond those already agreed to by

BPS. As part of these negotiations, BPS provided Johnson with

information on programs available at Clarke and the READS

Collaborative ("READS"). READS was described by the district court

as "a private school . . . . offer[ing] an educational program for

children with hearing disabilities." Johnson, 201 F. Supp. 3d at

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197 n.2. Johnson accepted placement at READS in early October

2014, and N.S. began attending that school shortly thereafter.

On October 16, 2014, Johnson and BPS participated in a

prehearing telephone conference with the BSEA, during which the

parties attempted to negotiate a settlement in the presence of the

hearing officer. BPS stated that it would only agree to a

settlement that resolved both the placement and compensatory

services claims, and the parties appeared to reach such an

agreement during that call. The following day, however, Johnson

informed BPS that she agreed to the placement proposal (which would

leave N.S. at READS) but not the proposed compensation settlement.

BPS promptly withdrew its offer to fund N.S.'s placement at READS.5

The BSEA hearing took place from November 17-19, 2014,

and included extensive testimony and exhibits. On January 2, 2015,

the hearing officer issued her decision, concluding that the

proposed 2013-14 and 2014-15[6] IEPs offered
[N.S.] a FAPE, and that [N.S.'s] progress
during the two and a half years in [BPS] was
effective given: the interruptions in
services caused by [Johnson], problems with
[N.S.'s] devices which caused him to spend
lengthy periods without access to sound;

5 BPS also notified Johnson that N.S.'s placement at READS
would be terminated at that time. The BSEA subsequently entered
a "stay-put" order which permitted N.S. to remain at READS pending
resolution of the hearing.
6 Despite the stay-put order, N.S.'s IEP team met in November
2014 to update the IEP for the coming school year. Johnson
rejected this IEP and challenged it as part of the then-ongoing
BSEA proceedings.

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 methodological limitations which impacted
[N.S.'s] ability to acquire language; and the
lack of effective access to
language/communication in the home due to
[Johnson's] belief that hearing sound without
the ability to understand language was
sufficient for N.S. to acquire language and
learn to speak. Placement at READS, although
appropriate, was unnecessary and largely
duplicative of the program and services
offered [to N.S.] at the Horace Mann School.

Notably for purposes of this appeal, the hearing officer also

concluded that Johnson's credibility as a witness had been

"seriously compromised" by her conduct during settlement

negotiations.7 The hearing officer also noted Johnson's "admitted

bias against public schools" and related preference for parochial

schools.

Thereafter, Johnson, proceeding pro se, commenced a

civil action challenging the hearing officer's decision in the

United States District Court for the District of Massachusetts.

See 20 U.S.C. § 1415(i)(2)(A). Subsequently, on September 11,

2015, she retained counsel. Johnson both appealed the BSEA's

determination that the 2013-14 and 2014-15 IEPs provided a FAPE

and raised a number of claimed errors during the hearing itself.8

7 Specifically, the hearing officer noted Johnson's "lack of
memory and insistence that [BPS] had not explained multiple times
that its offer for [sic] a READS placement was contingent on her
acceptance of a settlement that fully disposed of all claims
against [BPS], including compensatory services."
8 Johnson also raised a number of non-IDEA claims before the
district court. On Johnson's motion, the district court allowed
her to submit an amended "bifurcated complaint" which separately
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In support of her attack on the adequacy of the IEPs, Johnson

introduced additional records, specifically N.S.'s 2015 progress

reports from READS and select medical records from 2015.

BPS moved for summary judgment on the IDEA claims, and

the BSEA subsequently joined that motion. The district court

granted the motion and affirmed the BSEA's decision. This appeal

followed.

II. Discussion

Johnson raises a number of arguments on appeal. First,

she contends that the district court erroneously concluded that

she waived her argument that N.S. should be "mainstreamed" by

failing to raise "mainstreaming" before the BSEA. Second, Johnson

claims that the hearing officer's evaluation of her credibility

included consideration of impermissible facts and evidenced bias

against her. Finally, Johnson argues that the evaluation by both

the district court and hearing officer of N.S.'s educational

progress and the sufficiency of the challenged IEPs does not

comport with the standard announced by the Supreme Court's decision

in Endrew F., 137 S. Ct. 988.9 We consider each of these claims

in turn.

addressed the IDEA and non-IDEA claims. The present appeal
pertains only to the IDEA claims. Johnson has not appealed the
non-IDEA claims, and the time to do so has passed.
9 Appellees initially argued that this court lacked
jurisdiction over this appeal, as the order appealed dismissed
only Johnson's IDEA claims and, they argued, failed to provide a
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 A.

District courts considering challenges to administrative

IDEA decisions apply an intermediate standard of review that we

have called "involved oversight." D.B., 675 F.3d at 36. Under

that standard,

[a] district court reviews the administrative
record, which may be supplemented by
additional evidence from the parties, and
makes an independent ruling based on the
preponderance of the evidence. However, that
independence is tempered by the requirement
that the court give due weight to the hearing
officer's findings. As a result, a district
court's review falls somewhere between the
highly deferential clear-error standard and
the non-deferential de novo standard.

final judgment within the meaning of 28 U.S.C. § 1291. Shortly
after appellees filed their respective briefs, however, the
district court entered an order dismissing Johnson's remaining,
non-IDEA claims. While the district court did not enter a
"separate document" setting forth the judgment, as contemplated by
Federal Rule of Civil Procedure 58, appellees concede that the
second opinion constitutes a final judgment. We agree: the
district court's second order had the effect of denying Johnson
all relief and more than 150 days have passed since it was entered.
See Fed. R. Civ. P. 58(c)(2) ("For purposes of these rules,
judgment is entered . . . when the judgment is entered in the civil
docket under Rule 79(a) and the earlier of these events occurs:
(A) it is set out in a separate document; or (B) 150 days have run
from the entry in the civil docket."). The fact that the judgment
has not yet been set forth on a "separate document" does not affect
the validity of the appeal. See Fed. R. App. P. 4(a)(7)(B).
Likewise, even assuming that the initial appeal was premature
because it was not accompanied by an entry of judgment, the
subsequent entry of final judgment cures that deficiency. See
Barrett ex rel. Estate of Barrett v. United States, 462 F.3d 28,
34-36 (1st Cir. 2006) (premature appeal of dismissal of less than
all claims ripened into timely appeal after entry of judgment under
Federal Rule of Civil Procedure 58). Accordingly, we conclude we
have jurisdiction over this appeal. See Constien v. United States,
628 F.3d 1207, 1210-12 (10th Cir. 2010).

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Id. at 35–36 (internal quotation marks, alterations, and citations

omitted).

This court, however, applies a "more traditional"

standard of review to its evaluation of the district court's

decision. Id. at 36. We review the district court's

determinations of law de novo, and its findings of fact for clear

error. Doe v. Cape Elizabeth Sch. Dist., 832 F.3d 69, 76 (1st

Cir. 2016). "Where the case raises mixed questions of law and

fact, we employ a 'degree-of-deference continuum,' providing 'non-

deferential plenary review for law-dominated questions' and

'deferential review for fact-dominated questions.'"10 Id. at 76-

77 (quoting Mr. I ex rel. L.I. v. Me. Sch. Admin. Dist. No. 55,

480 F.3d 1, 10 (1st Cir. 2007)).

The majority of Johnson's challenges raise only

questions of law. Her final claim of error, however, includes

both a pure question of law, i.e. whether the district court

applied the proper standard in evaluating N.S.'s educational

progress, and a mixed question of law and fact, i.e. whether,

10Though this case comes to us following a grant of summary
judgment, "a motion for summary judgment in an IDEA case is simply
a vehicle for deciding the relevant issues, and the non-moving
party is not entitled to the usual inferences in its favor . . . .
[n]or does the presence of disputed issues of fact preclude the
award of summary judgment." Sebastian M., 685 F.3d at 84-85
(citations omitted).

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measured against the correct standard, N.S.'s progress under the

challenged IEPs was sufficient.

B.

Johnson first argues that the BSEA hearing officer

overlooked her argument that N.S. should be "mainstreamed." In

IDEA parlance, "mainstreaming" refers to the law's directive that

states must ensure that disabled students are educated in the

"least restrictive environment," and particularly that "[t]o the

maximum extent appropriate, children with disabilities . . . are

educated with children who are not disabled . . . ." 20

U.S.C. § 1412(a)(5)(A). The district court declined to entertain

this argument, concluding that Johnson did not raise it before the

BSEA and so failed to satisfy the IDEA's administrative exhaustion

requirement. Johnson, 201 F. Supp. 3d at 205-06.

While conceding that she never used the word

"mainstreaming" before the hearing officer, Johnson contends that

she implicitly "raised this point in argument and laid the factual

predicates onto the record." She emphasizes several statements in

her written "closing argument" to the BSEA, such as her statement

that "so many students with disabilities like [N.S.] are placed

unnecessarily in segregated settings like Horace Mann and [] so

few [students] were included with [] typically developing peers."

She also points to repeated arguments in that document that N.S.

should be educated with an appropriate "peer group," and asks

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rhetorically "[w]hat else would a mainstreaming argument look

like, other than a peer group argument?"

In our view, Johnson's contention that these statements

demonstrate her pursuit of a "mainstreaming" argument is belied by

context. Viewed in isolation, phrases like those quoted above

might indeed suggest that N.S. should be placed in a class with

"children who are not disabled." It is evident, however, that

this was not the thrust of Johnson's argument before the hearing

officer; rather, she sought out-of-district placement for N.S.

with other, similarly disabled students. Her "closing argument"

itself makes this clear: following the language quoted above,

Johnson urges the conclusion that the READS Collaborative

"provid[es] the 'Least Restrictive Environment'" and an

appropriate peer group of hearing-impaired students. In other

words, Johnson's use of those phrases was not directed at

encouraging the BSEA to "mainstream" N.S. into a classroom with

hearing students, but only to contrast the student body at READS

with that at Horace Mann, which she claimed included students with

disabilities other than hearing impairment. This understanding

accords with the rest of the record: while Johnson consistently

sought placement for N.S. at specialized schools for the hearing-

impaired, we find no indication that she ever sought to have him

placed with his hearing peers.

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 Finding as we do that Johnson did not present a

"mainstreaming" argument to the BSEA, we have no difficulty

concluding it cannot be considered here. "IDEA requires that a

plaintiff raise or exhaust claims concerning a disabled child's

'educational situation' in the due process hearing." Rafferty v.

Cranston Pub. Sch. Comm., 315 F.3d 21, 25 (1st Cir. 2002) (citation

omitted).

C.

Johnson next levels a series of claims based on the

conduct of the hearing itself. We examine these in turn.

i.

Johnson raises a number of challenges to the hearing

officer's decision, insisting that the hearing officer

impermissibly relied on statements Johnson made at the prehearing

conference. Johnson also maintains that the hearing officer

demonstrated bias against her by stating at that hearing that

Johnson's decision to proceed was a gamble and that she should

seriously consider settlement, and that the hearing officer should

have recused herself due to that bias.

Johnson first contends that Federal Rule of Evidence 408

(rendering evidence of "Compromise Offers and Negotiations"

inadmissible) should be extended to settlement discussions before

the hearing officer. Absent an express requirement, however,

administrative hearings are not bound by the Federal Rules of

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Evidence. See Fed. Trade Comm'n v. Cement Inst., 333 U.S. 683,

705-06 (1948) ("[A]dministrative agencies . . . have never been

restricted by the rigid rules of evidence."); R & B Transp., LLC

v. U.S. Dep't of Labor, Admin. Review Bd., 618 F.3d 37, 45 (1st

Cir. 2010) (stating that "[t]he Federal Rules of Evidence do not

apply in APA proceedings" and applying rules specific to agency in

question); see also Fed. R. Evid. 101, 1101 (listing covered

proceedings). The rules governing BSEA hearings explicitly

decline to bind due process hearings to "the rules of evidence

applicable to courts[.]" Mass. Dep't of Elementary & Secondary

Educ., Hearing Rules for Special Appeals ("Hearing Rules"), Rule

X(C). The assertion that the Federal Rules of Evidence govern

BSEA proceedings is thus baseless.11

Johnson next argues that these negotiations were

protected by the IDEA's exclusion of evidence of "[d]iscussions

that occur during the mediation process[.]" 20 U.S.C.

§ 1415(e)(2)(G); see also 603 Mass. Code Regs. 28.08(4)(b) ("All

11
Johnson also attempts to back-door the Federal Rules of
Evidence into the administrative proceedings, arguing that the
district court cannot consider evidence of the settlement
negotiation in the administrative records. We find no support for
this position. Moreover, given the record here, we decline to
find that the district court erred in reviewing evidence of the
settlement discussion that was properly considered by the hearing
officer below. See, e.g., New Dynamics Found. v. United States,
70 Fed. Cl. 782, 797-98 (Fed. Cl. 2006) ("[I]f plaintiff is right,
the [agency] would be obliged to apply those same evidence rules
derivatively, lest the court strike materials that it relied upon
in denying a [claim].").

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discussions that occur during mediations are confidential and may

not be used as evidence in a hearing."). "Mediation" does not,

however, refer to any setting in which the parties discuss

settlement in front of a third party, but only negotiations that

occur before a designated mediator. See 20 U.S.C.

§ 1415(e)(2)(A)(iii) (stating that "mediation" must be "conducted

by a qualified and impartial mediator who is trained in effective

mediation techniques."); 34 C.F.R. § 300.506(b)(iii) (same).

Here, the negotiations were before a hearing officer who convened

the parties for a prehearing conference. There is no evidence

that the parties sought to designate the hearing officer as a

"mediator," and the fact that the parties discussed settlement at

that conference did not transform it into a mediation.12 Indeed,

the BSEA rules explicitly contemplate the fact that a prehearing

12
While neither the IDEA nor the BSEA rules explicitly
prohibit a hearing officer from acting as a mediator, both appear
to envision those positions as entirely separate roles. See 603
Mass. Code Regs. 28.08(3) ("Mediations and hearings shall be
conducted by impartial mediators and hearing officers who do not
have personal or professional interests that would conflict with
their objectivity in the hearing or mediation and who are employed
to conduct those proceedings."); U.S. Dep't of Educ. Office of
Special Educ. and Rehab. Services, OSEP MEMO 13-08, OSEP Memo and
Q&A on Dispute Resolution, at 6 (July 23, 2013) (noting that "[t]he
mediator, in the case of mediation, and the hearing officer, in
the case of a due process hearing, must be a qualified and
impartial individual. Aside from these similarities, there are
important differences."). We note also that the BSEA claims in
its brief that, separate from the due process hearing, Johnson and
BPS did in fact participate in a mediation held before a BSEA
mediator. The record does not appear to contain any mention of
this mediation.

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conference might include such discussions. See Hearing Rules,

Rule V(B) ("Participants in a prehearing conference must have full

authority to settle the case or have immediate access to such

authorization."). These same governing BSEA rules do not require

that the prehearing conference be confidential. Id. Rule X(C).

Simply put, because there was no mediator during the negotiations,

there is no basis to place the prehearing conference within the

coverage of Section 1415(e)(2)(G).13

Lastly, Johnson argues that consideration of these

unsworn statements demonstrates impermissible bias and prejudging

of facts by the hearing officer. We disagree. At the outset, we

do not view the credibility determination, without more, as

indicative of "actual bias or hostility" towards Johnson, see

Roland M. v. Concord Sch. Comm., 910 F.2d 983, 997-98 (1st Cir.

1990), nor do we find any evidence of such bias elsewhere in the

record. Statements by the hearing officer that moving forward

with the proceeding entails a risk, and so that settlement may be

well-advised, do not evince bias. Likewise, we find no authority

for treating an adverse credibility determination based on the

witness's conduct before a tribunal as impermissible prejudgment

13Johnson's argument regarding the Massachusetts state law
governing "mediation privilege" fails for the same reason. Mass.
Gen. Laws ch. 233 § 23C (mediator defined as individual who, inter
alia, "enters into a written agreement with the parties to assist
them in resolving their disputes").

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of facts. The hearing officer's assessment was based on Johnson's

statements in this case that were made while the hearing officer

was functioning in at least a semi-adjudicative capacity. In this

context, at least, we are hard-pressed to see how consideration of

even unsworn statements in a credibility determination constitutes

impermissible prejudging of the merits.

ii.

Johnson separately claims that the hearing officer

inappropriately considered her preference for parochial schools in

evaluating her credibility. Johnson contends that this

effectively "punished" her preference and violated her First

Amendment rights to harbor and express that opinion.

This argument is utterly without merit. Johnson's bias

against public schools was certainly relevant to the hearing

officer's determination, as there was reason to believe that

Johnson's petition was motivated by a desire to place N.S. in a

parochial school, rather than any actual inadequacies in N.S.'s

instruction at Horace Mann. Johnson mischaracterizes this issue

as one of credibility, but Johnson's credibility has nothing to do

with the ultimate issue of whether N.S. was properly provided with

a FAPE. Nor is there any evidence that Johnson was "punished" for

her preference. The hearing officer did not ultimately rule

against Johnson because of her bias against public schools, but

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because she found that the quality of N.S.'s education met the

standard for a FAPE in the least restrictive setting.

D.

In her final challenge, Johnson contends generally that

N.S.'s educational progress was not sufficient to provide him with

a FAPE. In support of this argument, she contends that the Supreme

Court's recent decision in Endrew F., 137 S. Ct. 988, raised the

bar for evaluating the adequacy of the IEPs offered to disabled

students, such that the case should be remanded to the district

court for evaluation under the new standard.

At the outset, we disagree with Johnson's premise that

Endrew F. altered the standard to be applied here. In that case,

a unanimous Court held that the standard applied below, upholding

an IEP so long as it was "calculated to confer an 'educational

benefit [that is] merely . . . more than de minimis[,]'" was

insufficient to satisfy the substantive requirements of the IDEA.

137 S. Ct. at 997 (quoting Endrew F. ex rel. Joseph F. v. Douglas

Cty. Sch. Dist. RE-1, 798 F.3d 1329, 1338 (10th Cir. 2015)) (first

two alterations in original). Instead, the Court concluded that

"[t]he IDEA demands . . . . an educational program reasonably

calculated to enable a child to make progress appropriate in light

of the child's circumstances." Endrew F., 137 S. Ct. at 1001.

In our view, the standard applied in this circuit

comports with that dictated by Endrew F. This court has announced

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that, "to comply with the IDEA, an IEP must be reasonably

calculated to confer a meaningful educational benefit," and

emphasized that this requires consideration of the individual

child's circumstances.14 D.B., 675 F.3d at 34 ("An IEP must be

'individually designed' . . . and 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 these goals, and the specific

services to be offered.'" (internal citations omitted)). The

district court (and the BSEA before it) relied on this standard.

See Johnson, 201 F. Supp. 3d at 191-92. Given the lack of any

evident discrepancy between the standard applied in this circuit

(and in this case) and that announced by Endrew F., we see no

reason to remand the case for further evaluation.

It remains only for us to decide whether, viewed against

the record as a whole, the district court's conclusion that the

IEPs were adequate was clear error. See Lessard I, 518 F.3d at

24. In reaching that determination, the district court canvassed

the record and noted the objective indicia of N.S.'s advancement

14
In D.B., this court cited the Second Circuit's standard for
evaluating the substance of IEPs to elucidate the requirements
imposed by this circuit. 675 F.3d at 34-35 (citing D.F. ex rel.
N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598 (2d Cir. 2005)).
We note that the Second Circuit recently upheld that standard as
consistent with Endrew F. See Mr. P v. W. Hartford Bd. of Educ.,
885 F.3d 735, 757 (2d Cir. 2018).

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as he moved from a substantial inability to communicate or

understand spoken or signed language to gradually signing,

vocalizing, and demonstrating comprehension of other linguistic

concepts. That opinion, and the preceding BSEA decision, also

noted the consistent recommendation by medical experts and

educators that N.S. receive education in both spoken and sign

language, with the hearing officer placing particular emphasis on

evaluations through this period indicating that N.S.'s

communication using sign-supported spoken English considerably

outpaced his abilities in spoken English alone. Finally, the

district court noted that N.S.'s education at READS, which Johnson

approved of, used the same methodologies urged by the challenged

IEPs and made available at Horace Mann. Based on these findings,

the district court concluded that the challenged plans were

sufficient to provide N.S. with a FAPE.

We see no clear error in this determination. The facts

in the record are certainly sufficient to support the conclusion

that N.S. in fact made meaningful educational progress under the

educational methodology proposed by the IEPs and employed in Horace

Mann. Evidence from evaluations during this period demonstrate

that N.S. made meaningful linguistic advancements, particularly

when using both sign and spoken language, and it is reasonable to

conclude that an IEP offering a similar program would allow him to

continue this development. See D.B., 675 F.3d at 38 (permissible

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to conclude that, "since [] previous IEPs had conferred meaningful

educational benefits, [a similar future] IEP was reasonably

calculated to do the same, having kept in place, and even

supplemented, the services offered by previous IEPs."). As the

district court correctly noted, this conclusion is further

supported by evidence submitted by Johnson showing that N.S.'s

linguistic skillset continued to progress at READS while using a

"similar methodological model and . . . student-teacher ratio" to

that available at Horace Mann. Johnson, 201 F. Supp. 3d at 202.

Johnson fails to point us to any evidence in the record

that contradicts the district court's finding, much less any

indication that it is unsupportable considering the record as a

whole.15 Instead, she focuses on statements by the BSEA and the

district court characterizing N.S.'s progress as "slow" and his

linguistic skills as "significantly delayed." To the extent that

Johnson implies that "slow" progress is, in and of itself,

insufficient to constitute a "meaningful educational benefit," we

cannot agree. Instead, the relationship between speed of

advancement and the educational benefit must be viewed in light of

15The only specific facts to which Johnson does point are an
apparent regression in N.S.'s language skills between January and
October 2014. She does not, however, indicate how this backsliding
demonstrates the insufficiency of any of the IEPs. In our view,
that evidence is consistent with just the opposite conclusion:
N.S.'s regression occurred during the period in which he was not
attending Horace Mann and thus not following the proposed IEP
covering that period.

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a child's individual circumstances. See Endrew F., 137 S. Ct. at

1001 ("[T]he IDEA demands . . . . an educational program reasonably

calculated to enable a child to make progress appropriate in light

of the child's circumstances."); see also Lessard I, 518 F.3d at

29 ("[W]hile the reported progress is modest by most standards, it

is reasonable in the context of [the student's] manifold

disabilities . . . ."). Like the hearing officer before it, the

district court thoroughly reviewed the record and concluded that

the speed of N.S.'s advancement under the IEP-proposed educational

methodology was appropriate considering, among other factors, his

starting point and Johnson's own resistance to educating N.S. in

ASL and spoken English. Again, we see this conclusion as entirely

supportable within the record, and so find no basis on which to

reverse the district court's conclusion.

III.

For the reasons set forth above, we affirm the district

court's grant of summary judgment.

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