G. D. v. Swampscott Public Schools

United States Court of Appeals
For the First Circuit

No. 20-2114

G.D., by and through her Parents and Next Friends, JEFFREY and
MELISSA D.,

Plaintiffs, Appellants,

v.

SWAMPSCOTT PUBLIC SCHOOLS; BUREAU OF SPECIAL EDUCATION APPEALS,

Defendants, Appellees.

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

[Hon. Denise J. Casper, U.S. District Judge]

Before

Howard, Chief Judge,
Barron, Circuit Judge,
and Singal, District Judge.

Robert E. Curtis, Jr., with whom Melissa S. Dragon was on
brief for appellants.
Felicia S. Vasudevan, with whom Doris R. MacKenzie Ehrens and
Murphy, Hesse, Toomey & Lehane, LLP were on brief for appellees.

February 7, 2022

 Of the District of Maine, sitting by designation.
 BARRON, Circuit Judge. Jeffrey and Melissa D., on behalf

of their child ("G.D."), sought a determination from the

Massachusetts Bureau of Special Education Appeals ("BSEA") that

G.D.'s public school district failed to provide her with a free

appropriate public school education as required under the

Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C.

§§ 1400 et seq. They also sought reimbursement from the school

district for tuition expenses associated with their unilateral

placement of G.D. at a nearby private school. After a hearing,

the BSEA denied their claims, and they filed suit against the

school district and the BSEA in the United States District Court

for the District of Massachusetts. The District Court granted

judgment to the defendants. We affirm.

I.

A.

The IDEA requires states that receive federal financial

assistance under the statute to offer eligible children with

disabilities a "free appropriate public education," or, as it is

often called, a "FAPE." See Endrew F. ex rel. Joseph F. v. Douglas

Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 993 (2017); see also 20

U.S.C. § 1412(a)(1). "'The primary vehicle for delivery of a FAPE'

is an Individualized Education Program ('IEP')." Johnson v.

Boston Pub. Schs., 906 F.3d 182, 185 (1st Cir. 2018) (quoting D.B.

ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012)).

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 An IEP is the primary "means by which special education

and related services" are provided to an eligible child, see Endrew

F., 137 S. Ct. at 994, and it is composed of "a written statement

for each child with a disability that is developed, reviewed, and

revised in accordance with" federal law and regulations. 20 U.S.C.

§ 1414(d)(1)(A)(i); see also 34 C.F.R. § 300.324; 603 Mass. Code

Regs. 28.05. That written statement must include "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." Lessard v. Wilton-Lyndeborough Coop. Sch. Dist., 518

F.3d 18, 23 (1st Cir. 2008); see also 603 Mass. Code Regs.

28.05(4).

In Massachusetts, school districts are responsible for

the development and administration of IEPs. See 603 Mass. Code

Regs. 28.10. A school district must take care to ensure, in

satisfying the IDEA's requirement that eligible children be

provided with a FAPE, that the IEP is "reasonably calculated to

enable a child to make progress appropriate in light of the child's

circumstances." Endrew F., 137 S. Ct. at 999.

If, upon issuance of the IEP by the relevant school

district, the parents of the child receiving the IEP believe that

the IEP is not "reasonably calculated to enable [their] child to

make progress appropriate in light of [their] child's

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circumstances," id., or believe that the development and

administration of the IEP otherwise violates the IDEA's

requirements, the parents may file a complaint with the school

district to challenge the IEP. See 20 U.S.C. § 1415(b)(6); see

also D.B., 675 F.3d at 35. The filing of a complaint kicks off an

informal dispute resolution procedure conducted by the school

district. See 20 U.S.C. § 1415(f)(1)(B). If the school district

fails to "resolve[] the complaint to the satisfaction of the

parents within 30 days of the receipt of the complaint," the

parents are entitled to an "impartial due process hearing"

conducted by either the school district or the relevant state

educational agency. 20 U.S.C. §§ 1415(f)(1)(B)(ii),

1415(f)(1)(A).

In Massachusetts, in accord with the IDEA's established

framework for considering parent complaints, the "impartial due

process" hearing is conducted by the BSEA. See 20 U.S.C.

§ 1415(f)(1)(A); Mass. Gen. Laws ch. 71B, § 2A(a); 603 Mass. Code

Regs. 28.08(3)-(6). Further, parents who are dissatisfied with

the IEP provided to their child may "unilaterally" place their

child at a private school "during the pendency of review

proceedings." Sch. Comm. of Burlington v. Dep't of Educ., 471

U.S. 359, 373-74 (1985). But, the parents make that decision "at

their own financial risk." Id. at 374. The parents may request

that the state educational agency order the school district to

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reimburse them for expenses resulting from the unilateral

placement of their child, but the state educational agency is not

required to do so unless it finds that the school district "had

not made a free appropriate public education available to the child

in a timely manner" prior to the unilateral placement. 20 U.S.C.

§ 1412(a)(10)(C)(ii).

Under the IDEA, if the state educational agency renders

a decision adverse to either the parents or the school district,

either party may "bring a civil action challenging the outcome of

the due process hearing in either state or federal court."

Johnson, 906 F.3d at 186; see 20 U.S.C. § 1415(i)(2)(A); 603 Mass

Code Regs. 28.08(6). In conducting its review, the court in that

civil action must consider the "records of the administrative

proceedings," as well as "additional evidence at the request of a

party." 20 U.S.C. §§ 1415(i)(2)(C)(i)-(ii).

We have described a district court's review of the state

administrative ruling as entailing "involved oversight" of the

agency's factual findings and conclusions. S. Kingstown Sch.

Comm. v. Joanna S., 773 F.3d 344, 349 (1st Cir. 2014). The

district court, in demonstrating respect for the state

administrative agency's expertise as to educational and

pedagogical matters, must accord "due weight" to the agency's

administrative proceedings. Lenn v. Portland Sch. Comm., 998 F.2d

1083, 1087 (1st Cir. 1993) (quoting Bd. of Educ. of Hendrick Hudson

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Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982)); see id.

("Although the exact quantum of weight is subject to the district

judge's exercise of informed discretion, the judge is not at

liberty to [ignore] administrative findings or to discard them

without sound reason."). Then, "basing its decision on the

preponderance of the evidence," the district court "shall grant

such relief as [it] determines [is] appropriate." 20 U.S.C.

§ 1415(i)(2)(C)(iii).1 The court tasked with reviewing the outcome

of a due process hearing may order that the school district

reimburse the parents for expenses arising from unilateral

placement of their child at a private school, but the federal court

may do so only if it "concludes both that the public placement

violated IDEA and that the private school placement was proper

under the Act." Florence Cty. Sch. Dist. Four v. Carter, 510 U.S.

7, 15 (1993).

B.

We now "set forth the background facts" for the case at

hand "as supportably found by the [D]istrict [C]ourt." Sebastian

M., 685 F.3d at 82. We then describe the relevant procedural

history.

1 In civil actions of this sort, a motion for summary
judgment is "'simply a vehicle' for providing review of the
underlying administrative ruling." Joanna S., 773 F.3d at 349
(quoting Sebastian M. v. King Phillip Reg'l Sch. Dist., 685 F.3d
79, 84 (1st Cir. 2012)).

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 1.

G.D. is an eleven-year-old child and a resident of

Swampscott, Massachusetts. She is eligible to receive special

education services from her school district, Swampscott Public

Schools, on account of her learning disabilities, which include

severe dyslexia, dysgraphia, and a phonological processing

disorder. G.D. attended a local private school for kindergarten

and first grade. She did not receive any specialized services at

the private school.

G.D.'s parents grew concerned during her first-grade

year about her lack of early reading and writing skills. As a

result, in April 2017, G.D's parents referred their child to her

school district for an evaluation to determine whether she was

eligible for special education services.

With the consent of G.D.'s parents, and while she was

still attending private school, the school district conducted

psychological and academic assessments of G.D. The school district

determined that G.D. was eligible to receive special education

services due to a learning disability that affects her reading,

writing, and mathematics abilities.

The school district convened a meeting to discuss the

result of the evaluations between G.D.'s parents, teachers who

would provide the special education services set forth in the

proposed IEP, and representatives from the school district. At

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that June 7, 2017 meeting, the parents asserted that an appropriate

response to the disabilities identified in the school district's

assessment would involve a "science-based academic program for

dyslexic students." They also asserted that "neither [G.D.'s

current] private school nor [the school district] was equipped to

provide appropriate services for" their daughter. Accordingly,

the parents requested that G.D. be placed at a "substantially-

separate school" for children with language-based disabilities.

The school district rejected this request, and proposed an IEP for

her second-grade year on June 20, 2017.

The proposed IEP offered G.D. special education services

that would be provided to her five times a week during the school

year and four times a week during the preceding summer.2 The June

2017 IEP indicated that, during the school year, G.D. would receive

the designated services in a partial inclusion placement at an

elementary school within the school district, meaning that she

would receive some specialized instruction in a "language-based

classroom," and "inclusion support in other subjects in the general

2 The proposed IEP established various goals for G.D. to
accomplish during her second-grade year, such as her "decoding and
encoding [of] closed one-syllable words and identification of
sight words; a reading goal focusing on fluency and comprehension;
a written language goal to teach [G.D. how] to write a simple story
with complete sentences and correct capitalization and
punctuation; and a math goal addressing addition/subtraction
facts, telling time, identifying money, use of graphs and charts,
and solving word problems."

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education setting." The IEP also provided that G.D. would receive

an "extended evaluation" during the first eight weeks of her

second-grade year.

Later that month, G.D.'s parents sent a letter to the

school district that indicated their intention to "conditionally

accept" the proposed IEP and the placement corresponding to it,

despite their view that the IEP was not sufficient to allow G.D.

to make effective progress. The parents also indicated that they

would arrange to have a private specialist, Dr. Robert Kemper,

evaluate G.D. during the summer, and they requested that the

results of the specialist's evaluation be discussed at the next

convened meeting in October.

During the summer, G.D. received the "extended year"

reading instruction services that were provided for in the IEP.

Those services consisted of two forty-five-minute sessions each

week of reading instruction from special education teachers. And

after G.D. had completed her summer instruction, Dr. Kemper

conducted his planned evaluation of G.D. The evaluation involved

Dr. Kemper's administration of tests designed to assess oral and

written language skills. Based on this testing, Dr. Kemper

determined that G.D. met the criteria for diagnoses of dyslexia,

"double deficit" phonological processing disorder, dysgraphia, and

a language impairment that impacted G.D.'s ability to convey her

thoughts orally and in writing. Dr. Kemper also "strongly

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recommended" that G.D.'s "special education services be provided

within . . . a substantially separate educational

program . . . housed within . . . a school that is designed

specially to meet the needs of students such as [G.D.] who

demonstrate severe language-based learning disabilities."

G.D.'s second-grade year began in late-August 2017.

Pursuant to the IEP, G.D. "participated in a general education

class at [the school district] with support for science, social

studies and non-academic activities," and separated from the

general education class for a part of the school day "to work on

[reading, writing, and math] skills in individual or small group

sessions with a special education teacher." G.D. ex rel. Jeffrey

D. v. Swampscott Public Schools, No. 19-cv-10431, 2020 WL 3453172,

at *2 (D. Mass. June 23, 2020). In November, Dr. Kemper conducted

a re-evaluation of G.D. to measure progress in her reading and

writing skills using several of the same assessments that he had

administered to G.D. in August.

Some of G.D.'s assessment scores did not increase;

others increased somewhat, but Dr. Kemper opined that the increase

was not enough to demonstrate "statistically significant"

improvement. Dr. Kemper concluded that G.D.'s assessment scores

provided "no evidence of effective progress" resulting from the

three months of instruction and special education services that

G.D. received from Swampscott as a result of the IEP. He further

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concluded that it was "extremely critical that [G.D.] be placed in

an alternative education setting as soon as possible."

The school district then held another meeting on

November 21, 2017 to discuss the results of Dr. Kemper's

evaluation. At that meeting, the school district proposed an

amendment to the IEP that would place G.D. in "a substantially

separate language-based classroom" instead of the previous

placement, under which G.D. had received instruction in a general

education class for the bulk of the school day but also received

"specialized, pull-out individual or small group instruction" from

special education teachers. G.D.'s parents initially rejected

this proposed amendment to the IEP. In January 2018, however, the

parents accepted the amendment after Swampscott proposed it as

part of an eight-week "extended evaluation" of G.D.

In March 2018, at the conclusion of the "extended

evaluation" period, the school district administered to G.D.

several formal and informal assessments to measure her progress

since the beginning of the school year.3 According to the school

district, those assessments demonstrated that G.D. was "improving

her oral reading fluency," and "making progress in writing using

graphic organizers, templates, and word processing programs." A

quarterly progress report, issued by G.D.'s teachers at her public

3 The school district previously administered these
assessments to G.D. at different points in 2017.

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school in the school district in the same month, noted that G.D.

was "making progress" on the goals identified in her IEP.

Around the time of this evaluation, G.D.'s parents

submitted an application for their daughter's admission to

Landmark School ("Landmark"), a private school that specializes in

the instruction of, and exclusively teaches, schoolchildren with

learning disabilities. As part of the application process,

Landmark administered standardized tests to G.D. to measure her

reading and writing abilities, as well as her learning aptitude.

Landmark accepted the application shortly thereafter.

Later in the month, the school district convened another

meeting with G.D.'s parents to discuss the results of its "extended

evaluation" of G.D., a report from Dr. Kemper concerning G.D.'s

progress, and progress reports from G.D.'s teachers at her local

public school. At the meeting, the school district shared its

view that G.D. was making progress due to the services that she

received in her new placement and proposed that the placement

continue beyond the "extended evaluation" period on which the

school district and the parents had earlier agreed.

G.D.'s parents expressed their view that G.D. was not

making "effective progress [in the placement], that she in fact

had regressed, and needed an outside placement." G.D.'s parents

also informed the school district of G.D.'s acceptance at Landmark

and stated their intention to "unilaterally place" G.D. at Landmark

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for the upcoming school year. In addition, they informed the

school district that they would seek reimbursement from the school

district for expenses associated with G.D.'s placement at Landmark

and would seek a due process hearing before the BSEA to secure

such reimbursement.4

Three days after the meeting, G.D.'s parents sent to the

school district a letter that stated their intention to

unilaterally place G.D. at Landmark and to seek "full reimbursement

of all costs related to [G.D.'s] enrollment at Landmark." One

week after sending that letter, G.D.'s parents submitted a hearing

request to the BSEA.

2.

The hearing request alleged, among other things, that

the school district had denied G.D. a FAPE because it had "failed

to deliver to [G.D.] the services set forth in her 2017-2018 IEP;"

that the IEP had "caused regression for [G.D.] and has not resulted

in effective progress;" that "the proposed IEP and placement fails

to promote [G.D.'s] development in all areas of need;" and that

the IEP was not "appropriately ambitious and lack[ed] measurable

goals related to [r]eading." The parents requested "an appropriate

4 As to the school district's newly proposed IEP, the
parents rejected it in part on the view that it was inappropriate
and insufficient given G.D.'s needs, but accepted it for the
purpose of implementation only for the remainder of the school
year.

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placement for [G.D.] within the least restrictive environment to

address [G.D.'s] unique needs, by providing the consistent out-

of-district placement at a school that parents deem appropriate

for [G.D.] (which parents and child's providers maintain is

appropriate for [G.D.] like Landmark School)." They also requested

that the school district "be required to fund [G.D.'s] out of

district tuition, transportation, mandatory fees and activity

expenses, and mandatory hardware expenses."

The BSEA hearing took place over an eight-day period

between June and October 2018. In the interim, G.D.'s parents

enrolled their daughter at Landmark for summer instruction and for

the subsequent school year. At the conclusion of the BSEA hearing

in October, G.D. had received 24 days of instruction in Landmark's

summer program, and approximately one month of schooling in

Landmark's academic year program.

The BSEA hearing officer issued her decision on

December 10, 2018. The hearing officer viewed the record before

her as presenting a "close case" but concluded that G.D.'s parents

failed to prove by a preponderance of the evidence that the IEPs

provided by the school district were not reasonably calculated to

provide G.D. with a free appropriate public education, and that,

as a consequence, the school district was not required to reimburse

G.D.'s parents for the cost of their unilateral placement of G.D.

at Landmark.

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 After receiving the BSEA hearing officer's decision,

G.D.'s parents, on March 8, 2019, filed a pro se complaint in the

United States District Court for the District of Massachusetts as

permitted under the IDEA. See 20 U.S.C § 1415(i)(2)(A). The

complaint named the school district and the BSEA as defendants and

sought a declaration from the District Court that the BSEA erred

in its determination that G.D.'s IEP was reasonably calculated to

provide her with a FAPE. The parents also sought an order from

the District Court directing the school district to reimburse them

for the costs of sending G.D. to Landmark. The District Court

thereafter denied the parents' motion for summary judgment and

entered judgment in favor of the defendants. See Swampscott, 2020

WL 3453172. This appeal followed.

II.

G.D.'s parents first challenge the District Court's

reliance in granting judgment to the defendants on the BSEA's

finding that G.D. had made "slow gains" under the IEP. The parents

do not suggest that a finding of "slow gains" is categorically

incapable of supporting the rejection of a challenge to an IEP

under the IDEA for failing to provide a child with a FAPE. They

instead press a more limited contention based on the Supreme

Court's recent decision in Endrew F., 137 S. Ct. at 999, which

they contend permits a "slow gains" finding to provide a basis for

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rejecting such a challenge only when the rejection based on that

finding is tied to the child's "particular circumstances."

The argument by G.D.'s parents based on Endrew F. appears

to be in part that the District Court mistakenly held that the

BSEA was not required to make findings about G.D's individual

circumstances in relying on her IEP-based "slow gains" to reject

the parents' IDEA claims. But, even assuming we must review this

determination de novo as a question of law, it is without merit,

as the record shows that the District Court did not make the

claimed mistake. Rather, it explained that "the [BSEA] Hearing

Officer concluded that the goals included in the IEPs for G.D. and

the progress that G.D. made towards achieving those goals were

appropriate in light of G.D.'s circumstances." Swampscott, 2020

WL 3453172, at *5 (emphasis added); see also C.D. ex rel. M.D. v.

Natick Pub. Sch. Dist., 924 F.3d 621, 629 (1st Cir. 2019) ("Under

both Endrew F. and our precedent, a court evaluating whether [the]

IEP offers a FAPE must determine whether the IEP was reasonably

calculated to confer a meaningful educational benefit in light of

the child's circumstances.").

G.D.'s parents also appear to be arguing, in the

alternative, that the District Court erred in light of Endrew F.

because the BSEA did not in fact premise its finding regarding the

import of G.D'S "slow gains" on her individual circumstances. But,

this contention also lacks merit.

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 The BSEA explained that:

[A]fter arriving in Swampscott as a non-
reader . . . [G.D.] acquired some phonemic
awareness skills . . . progressed from being
unable to blend syllables or recognize vowels,
to being able to identify some syllable types
and digraphs, and from being able to read only
at a mid-kindergarten level when she entered
SPS in August 2017 to being able to read a
Grade 1-level text by January 2018. During
2017-2018 [G.D.] acquired knowledge of word
sounds and recognized increasing numbers of
sight words. . . . There is no dispute that
with support, [G.D.] acquired new math skills.
With accommodations for her reading and
writing deficits, there was no evidence that
[G.D.] could not absorb second-grade content
in science and social studies.

This passage leads us to conclude that the BSEA impliedly tied its

consideration of G.D's "slow gains" to its discussion of the goals

set out for G.D. in her IEPs, see Swampscott, 2020 WL 3453172,

at *5, and that it did so by assessing those gains with reference

to her not having had the benefit of any special education services

in kindergarten and first grade, when she had attended a private

school. Id. We thus do not see how the parents' assertion that

the BSEA failed to account for G.D.'s individual circumstances

holds, notwithstanding that the BSEA did not state expressly the

need to account for her individual circumstances in making the

requisite tie.

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 III.

The parents next contend that the District Court erred

by relying on "informal" evidence of G.D.'s "slow gains" under the

IEP to reject their IDEA claims that the BSEA erred in finding

that G.D. received a FAPE when "uncontroverted standardized

testing" showed that G.D. failed to improve her performance on

such tests while receiving the services prescribed by her IEP.

The parents' argument proceeds as follows: the IDEA requires that

a school district must "meet the standards of the State educational

agency" in providing a FAPE to an eligible student, 20 U.S.C.

§ 1401(9)(B); Massachusetts relies on standardized testing -- the

Massachusetts Comprehensive Assessment System exams -- in

measuring educational progress, see 603 Mass. Code Regs. 30.02,

30.03; such testing in Massachusetts constitutes "the standards of

the State educational agency;" in determining whether the school

district provided G.D. with a FAPE, the BSEA and the District Court

were required to rely on her progress based on her performance on

what the parents refer to as "standardized tests" rather than on

the more qualitative assessments of her progress under the IEP

that the school district administered and on which the BSEA and

the District Court in fact relied; and, finally, those standardized

tests revealed that G.D.'s performance on them had not improved.

As this question concerns the proper interpretation of 20 U.S.C.

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§ 1401(9)(B), a provision of the IDEA, our review is de novo. See

Lenn, 998 F.2d at 1087.

The District Court noted, however, that the parents

offered no authority to support the proposition that an IEP -- for

purposes of determining whether she received a FAPE -- "only must

be measurable through standardized testing evidence to be

considered appropriate." Swampscott, 2020 WL 3453172, at *5. Nor

have they done so on appeal. Moreover, the parents do not

challenge the BSEA's finding, which the District Court also

invoked, that "there is no credible, reliable information in the

record about how much growth in standardized test scores during

the time period in question would be required to demonstrate

'effective progress' for [G.D.]." Id. Instead, they contend only

that because standardized testing is relied on by Massachusetts as

a general matter, evidence that a child has made no progress on

those tests while receiving the services provided for in her IEP

must suffice to show that she has not received the kind of progress

necessary to show that she is receiving a FAPE, regardless of the

other evidence of her having made "effective progress" under the

IEP that is in the record.

But, a child receives a FAPE if a school district offers

her "an IEP that is reasonably calculated to enable [her] to make

progress appropriate in light of [her] circumstances." Endrew F.,

137 S. Ct. at 999. A standardized test is, by definition, designed

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to measure a child's progress without regard to her individual

circumstances, let alone with regard to the individual

circumstances for that child identified in her IEP. See, e.g.,

Indep. Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1082 (8th

Cir. 2020); William V. ex rel. W.V. v. Copperas Cove Indep. Sch.

Dist., 826 Fed. App'x 374, 379 (5th Cir. 2020); F.L. v. Bd. of

Educ. of Great Neck Union Free Sch. Dist., 735 Fed. App'x 38, 40

(2d Cir. 2018); cf. Doe v. Cape Elizabeth Sch. Dist., 832 F.3d 69,

81 (1st Cir. 2016) (noting that a child's "generalized academic

performance," such as performance reflected on a standardized

assessment, may "contradict[] the results of" assessments that are

specifically tailored for a child). Thus, absent some evidence -

- which the BSEA found to be lacking and which the parents do not

identify as being present in the record -- as to "how much growth

in standardized test scores during the time period in question

would be required to demonstrate 'effective progress' for [G.D.],"

Swampscott, 2020 WL 3453172, at *5, it is not evident to us how

the BSEA erred in relying on the informal assessments showing G.D.

to have made "slow gains" under her IEP to arrive at its finding

that the parents failed to meet their burden to show that she had

not received a FAPE, at least given that, as we have explained,

that "slow gains" finding was based on a consideration of G.D.'s

individual circumstances.

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 IV.

G.D.'s parents also argue that the District Court erred

along a number of distinct dimensions with respect to its treatment

of evidence that concerned G.D.'s progress at Landmark. Here,

too, we disagree.

A.

The parents' first contention on this score is that the

District Court erred in not permitting the introduction of evidence

about G.D.'s progress at Landmark that arose after the BSEA hearing

concluded. The parents contend that the District Court's allowance

of the introduction of the earlier Landmark-related evidence

renders arbitrary the exclusion of that later Landmark-related

evidence. Our review is for abuse of discretion. See Roland M. v.

Concord Sch. Comm., 910 F.2d 983, 997 (1st Cir. 1990).

The District Court's differing treatment of pre- and

post-hearing Landmark-related evidence reflects a reasonable

assessment of the different nature of those two categories of

evidence. The former category of Landmark-related evidence arose

before the conclusion of the BSEA hearing in October 2018 and so

constituted evidence that the District Court could have reasonably

determined that the BSEA itself was obliged to consider. The post-

hearing evidence, by contrast, arose only after the BSEA had

concluded its proceedings and so is not evidence of that kind.

Thus, the mere fact that the District Court treated these two

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tranches of Landmark-related evidence differently does not show

that the District Court abused its discretion in denying the

admission of the Landmark-related evidence that arose after the

conclusion of the BSEA hearing.

The parents do also contend that the post-hearing,

Landmark-related evidence that was excluded by the District Court

could still have been admissible, despite its late-arising

character, because it could show how the school district's actions

in formulating and administering the IEP at issue "were objectively

unreasonable from the outset," such that they had denied her the

FAPE to which the IDEA entitled her. But, even assuming that is

so, the District Court held here that the Landmark-related evidence

could not show that the school district's actions with respect to

the IEP for G.D. were objectively unreasonable.

As the District Court explained, insofar as G.D. did

make progress at Landmark, she did so in an educational environment

specifically tailored exclusively for students with special

education needs, whereas, at her local public school, G.D., while

receiving the services under her IEP, also "participated in a

general education class for certain subjects." Swampscott, 2020

WL 3453172, at *7. We understand the District Court to have

reasoned in this regard that, given the IDEA's preference for

"educating students with disabilities in general-education

settings," id. (internal quotation marks and citations omitted),

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a comparison between the progress that G.D. made at Landmark with

her progress at her local public school would not reveal that she

had not received a FAPE, see C.G. ex rel. A.S. v. Five Town Cmty.

Sch. Dist., 513 F.3d 279, 284-85 (1st Cir. 2008) (noting that "[i]t

is common ground that the IDEA manifests a preference for

mainstreaming" students with special needs); Roland M., 910 F.2d

at 992-93 ("Mainstreaming may not be ignored, even to fulfill

substantive educational criteria."). As the parents do not develop

any argument as to how the District Court erred in so determining,

we cannot say that the record compels the conclusion that it

clearly erred in making that determination.5

B.

The parents further contend that the Landmark-related

evidence presented to the District Court demonstrates that G.D.

made "swift, significant, and quantifiable progress" there and

thus, per C.B. ex rel. B.B. v. Special School District No. 1,

Minneapolis, Minnesota, 636 F.3d 981 (8th Cir. 2011), that the IEP

instituted by the school district was not reasonably calculated to

5 On this basis, we also reject the parents' argument that
the District Court abused its discretion in denying them an
evidentiary hearing as to the admissibility of the pre-hearing,
Landmark-related evidence. For, as the District Court noted in
its memorandum opinion, even if that evidence was deemed to be
"admissible and could be said to support Plaintiffs' contention
that G.D. made progress at Landmark," it still would not support
the conclusion that the school district's IEP was inadequate and
that the school district failed to provide G.D. with a FAPE.
Swampscott, 2020 WL 3453172, at *7.

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enable G.D. to make appropriate progress in that school setting.

But, in C.B. ex rel. B.B., the school district was put on notice

that the child's reading abilities improved due to the use of an

alternative teaching method and nonetheless declined to consider

or implement that alternative teaching method in a successive IEP.

See 636 F.3d at 984. Here, by contrast, the school district

correctly points out that it did not have access to information

concerning G.D.'s progress at Landmark at the time that it

formulated the March 2018 IEP that is at issue, because the

progress itself post-dated the formulation of that IEP. See Roland

M., 910 F.2d at 992 ("An IEP is a snapshot, not a retrospective.

In striving for 'appropriateness,' an IEP must take into account

what was, and was not, objectively reasonable when the snapshot

was taken, that is, at the time the IEP was promulgated."). Thus,

we are not persuaded by the parents' attempt to challenge based on

C.B. ex rel. B.B. the conclusion that the IEP was not reasonably

calculated to provide G.D. with a FAPE.

V.

For the foregoing reasons, we affirm the District

Court's grant of judgment to the defendants.

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