Sebastian M. v. King Philip Regional School District

United States Court of Appeals
For the First Circuit

No. 11-1489

SEBASTIAN M.; LISA M., as Legal Guardian and Parent;
MICHAEL M., as Legal Guardian and Parent,

Plaintiffs, Appellants,

v.

KING PHILIP REGIONAL SCHOOL DISTRICT;
MASSACHUSETTS DEPARTMENT OF ELEMENTARY AND SECONDARY EDUCATION,
and its Bureau of Special Education Appeals,

Defendants, Appellees.

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

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Boudin and Lipez, Circuit Judges,
and Smith,* District Judge.

D. Luray Wallace for appellants.
Regina Williams Tate for appellee King Philip Regional School
District.
Amy Spector for appellee Massachusetts Department of
Elementary and Secondary Education.

July 16, 2012

*
Of the District of Rhode Island, sitting by designation.
 LIPEZ, Circuit Judge. This case involves a claim under

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

§§ 1400-1491, which requires that students with disabilities

receive a free appropriate public education ("FAPE") in the least

restrictive environment possible. See 20 U.S.C. § 1412(a)(1), (5).

Sebastian M. is a disabled young man with mental retardation who

was enrolled in a special education program run by the King Philip

Regional School District. When he was twenty years old, his

parents became dissatisfied with his public education and placed

him in a private residential facility. An administrative hearing

officer determined that Sebastian's parents were not entitled to

recover the costs of Sebastian's private education, and the federal

district court upheld that decision. See Sebastian M. v. King

Philip Reg'l Sch. Dist., 774 F. Supp. 2d 393, 408-09 (D. Mass.

2011). We affirm.

I.

We set forth the background facts as supportably found by

the district court. See Lessard v. Wilton-Lyndeborough Coop. Sch.

Dist., 518 F.3d 18, 21 (1st Cir. 2008); C.G. ex rel. A.S. v. Five

Town Cmty. Sch. Dist., 513 F.3d 279, 282 (1st Cir. 2008).

Sebastian was born in 1986 and began receiving special education

services when he was three years old. These services continued

after he entered the King Philip public school system, which each

year developed an individualized education program ("IEP") for him,

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as required by the IDEA. See 20 U.S.C. § 1412(a)(4). In 1998,

when Sebastian was twelve, he was transferred to the Bi-County

Educational Collaborative ("BICO"), an organization established

pursuant to Mass. Gen. Laws ch. 40, § 4E, to attend to special

needs students from several public school districts. The King

Philip school system remained responsible for Sebastian's education

throughout his time at BICO and continued to develop his annual

IEPs in consultation with his parents and educators. At BICO,

Sebastian received vocational training through the Work Lab I, Work

Lab II, and Life Roles Transition programs. His work experiences

included assembling pizza boxes at a restaurant, performing light

janitorial work, stamping paychecks, and helping out at an autobody

shop. Sebastian also received instruction in basic mathematics and

personal hygiene, and he learned to use the Dial a Ride program to

reach his work sites.1

In 1998, Sebastian's first year at BICO, he displayed

"significant difficulties with several aspects of fine motor

functioning," according to an occupational therapy assessment. A

reevaluation conducted in the spring of 2002, when Sebastian was

sixteen, indicated that his "active upper extremity range of motion

and strength [we]re both within functional limits" and that he was

"progressing nicely" with typing skills. However, Sebastian

1
Dial a Ride is a community-based public transportation
service for elderly and disabled passengers.

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continued to demonstrate visual-motor and visual-spatial deficits,

as well as deficits in receptive language skills. His language

arts abilities were equivalent to a first- or second-grade level,

and he operated at a third-grade level in mathematics.

Progress reports for the 2002-2003, 2003-2004, and 2004-

2005 school years showed that Sebastian was making steady progress

pursuant to his IEPs. For example, in November 2003, Sebastian was

able to decode words at a fourth-grade level, and could write a

five- or six-sentence paragraph with the use of a graphic organizer

and teacher assistance. He was then seventeen years old. By June

2004, Sebastian was able to use inferential logic, with some

support, to predict outcomes and solve problems, and he was

"show[ing] improvement in his ability to sound out long, unfamiliar

words." He also was making strides in "counting out his [lunch]

money, and figuring out what change he should receive."

Evaluations conducted in May 2005 noted that Sebastian

had "a difficult time with both body and spatial awareness" and

that his "visual tracking of a moving manipulative [was] very

poor." However, Sebastian was comfortable using public

transportation to reach his work sites, scored at a fourth-grade

level in word recognition and computational skills, and had learned

to identify thirty-nine of forty "safety signs," such as "wet

paint" and "fire alarm." In addition, he had "demonstrated slight

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gains over previous testing" in receptive language skills and had

made a "two year jump in pragmatic language skills."

Despite these gains, Sebastian's parents became

frustrated by what they perceived as poor communication from BICO,

and they questioned why Sebastian was unable to replicate at home

the achievements described in his progress reports. They also

worried that Sebastian was not developing independent living skills

and that his increasingly aggressive behavior at home was

attributable to inadequate supervision at BICO.

After the 2004-2005 academic year, Sebastian's parents

began pressing the King Philip school system to remove Sebastian

from BICO and place him in a year-round residential program.

Beginning in June 2005, they rejected a series of IEPs proposed by

the school system that offered alternative accommodations, such as

increased emphasis on independent living skills, weekly

occupational therapy sessions, and after-school activities. When

negotiations broke down in December 2006, Sebastian's parents

notified the school system that they intended to unilaterally

withdraw Sebastian from BICO. On January 2, 2007, Sebastian began

attending the Cardinal Cushing School, a private residential

facility. Sebastian's parents then invoked their statutory right

to an administrative due process hearing before the Massachusetts

Bureau of Special Education Appeals ("BSEA"), see 20 U.S.C.

§ 1415(f)(1)(A), seeking reimbursement for the costs of Sebastian's

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private education, as well as compensatory services they claimed

were necessitated by the failures of the King Philip school system.

The school system answered that Sebastian's parents were not

entitled to the relief sought, because its proposed IEPs had

offered Sebastian a FAPE in the least restrictive environment

possible, as required by the IDEA.

A BSEA hearing was held over six days between September

18, 2008, and January 8, 2009. The administrative hearing officer

compiled a comprehensive record describing the nature of

Sebastian's disabilities and documenting his educational history.

On January 13, 2009, the hearing officer issued a lengthy decision

largely favorable to the school system. In the hearing officer's

view, the IEPs proposed by the school system complied with the IDEA

insofar as they were "reasonably calculated to permit [Sebastian]

to make meaningful progress." As a result, the school system had

no financial responsibility for Sebastian's private education. The

hearing officer explained, however, that the school system had not

consistently implemented Sebastian's previous IEPs and had, on

"more than an occasional number of times," assigned him tasks that

were too difficult for him to complete. Accordingly, the school

system had to offer Sebastian limited compensatory services in the

form of updated evaluations and a transition plan to guide his

eventual departure from the Cardinal Cushing School.

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 Sebastian and his parents sought judicial review of the

hearing officer's decision by filing suit in the United States

District Court for the District of Massachusetts, see 20 U.S.C.

§ 1415(i)(2)(A), naming as defendants the King Philip school system

and the Massachusetts Department of Elementary and Secondary

Education. The school system did not appeal. After both sides

filed motions for summary judgment, the district court ruled

against Sebastian and his parents. See Sebastian M., 774 F. Supp.

2d at 408-09. Upholding the hearing officer's decision, the

district court noted that Sebastian had made meaningful progress at

BICO under his previous IEPs and likely would have continued to

make such progress if the proposed IEPs had been implemented. See

id. at 408. This appeal followed.

II.

A state receiving federal funds under the IDEA must offer

every disabled child within its jurisdiction a FAPE in the least

restrictive environment possible. See 20 U.S.C. § 1412(a)(1), (5).

If a state is unable to provide a disabled child with a FAPE

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

the child in a private program. See D.B. ex rel. Elizabeth B. v.

Esposito, 675 F.3d 26, 34 (1st Cir. 2012); C.G., 513 F.3d at 284.

"The 'primary vehicle' for delivery of a FAPE is an IEP."

D.B., 675 F.3d at 34 (quoting Lessard, 518 F.3d at 23). An IEP

must be custom-tailored to suit a particular child, see Bd. of

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Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176,

201 (1982), 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 those goals, and the specific services to

be offered," Lessard, 518 F.3d at 23. However, an IEP need not be

designed to furnish a disabled child with the maximum educational

benefit possible. See D.B., 675 F.3d at 34. To comply with the

IDEA, an IEP need only be "reasonably calculated to confer a

meaningful educational benefit." Id.

Parents who are dissatisfied with their child's IEP may

demand an administrative due process hearing before a designated

state educational agency. See 20 U.S.C. § 1415(f). In this case,

that agency is the BSEA. From there, an appeal of the

administrative hearing officer's final decision may be taken to

either a federal or state court of competent jurisdiction. See id.

§ 1415(i)(2)(A); Lessard, 518 F.3d at 24.

We recently articulated the different standards that

apply to a federal district court's review of a hearing officer's

decision and our review of the district court's decision:

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

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 court's review falls somewhere between the
highly deferential clear-error standard and
the non-deferential de novo standard. We have
characterized this intermediate level of
review as one of involved oversight.

Our review of the district court's order is
more traditional. We examine the record as a
whole and review the district court's answers
to questions of law de novo and its findings
of fact for clear error. Whether an IEP is
adequate is a mixed question of law and fact,
and our degree of deference depends on whether
a particular determination is dominated by law
or fact.

D.B., 675 F.3d at 35-36 (citations, internal quotation marks, and

brackets omitted).

The application of these standards in the context of a

motion for summary judgment adds a layer of complexity. See Ross

v. Framingham Sch. Comm., 44 F. Supp. 2d 104, 112-13 (D. Mass.

1999). As in other administrative appeals, 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. See Lillbask ex rel. Mauclaire v.

Conn. Dep't of Educ., 397 F.3d 77, 83 n.3 (2d Cir. 2005);

Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 892 (9th

Cir. 1995) ("Though the parties may call the procedure a 'motion

for summary judgment' . . . the procedure is in substance an appeal

from an administrative determination, not a summary judgment.");

cf. Scibelli v. Prudential Ins. Co. of Am., 666 F.3d 32, 40 (1st

Cir. 2012) (describing summary judgment in context of ERISA case).

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Nor does the presence of disputed issues of fact preclude the award

of summary judgment. See Capistrano, 59 F.3d at 891-92.

However, "judicial review in IDEA cases differs

substantially from judicial review of other agency actions, in

which courts generally are confined to the administrative record

and are held to a highly deferential standard of review." Ojai

Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1471 (9th Cir. 1993);

see also Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1988)

("[T]he district court's authority under [the IDEA] to supplement

the record below with new evidence, as well as Congress's call for

a decision based on the 'preponderance of the evidence,' plainly

suggest less deference than is conventional [in other

administrative appeals]."). As a result, in an IDEA case, a

district court "essentially conduct[s] a bench trial based on a

stipulated record," Ojai, 4 F.3d at 1472, but must nevertheless

give due deference to the findings of the administrative hearing

officer, see id. at 1471-72. We then review the district court's

ruling as we would following any other bench trial.

III.

The primary issue raised on appeal is whether the IEPs

proposed by the King Philip school system complied with the IDEA.

Sebastian and his parents challenge the district court's judgment

by focusing on two alleged errors by the hearing officer undetected

by the district court: (1) that the hearing officer did not give

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sufficient weight to their expert witnesses' testimony that the

proposed IEPs were unsuitable for Sebastian; and (2) that the

hearing officer's findings misstated the services available to

Sebastian at the Cardinal Cushing School, downplaying, for example,

the opportunities there for off-site vocational training. In light

of these errors, they argue, the district court should not have

upheld the hearing officer's ruling.

A. The Expert Witnesses

Two expert witnesses testified at the due process hearing

on behalf of Sebastian and his parents: Dr. Anne Marie Lasoski, a

neuropsychologist, and Marsha Stevens, an educational consultant.

Lasoski evaluated Sebastian in 1999 and 2006. In total, she spent

approximately eight hours with Sebastian. She also reviewed his

academic records and observed his performance at BICO on one

occasion. Lasoski did not, however, speak with Sebastian's

teachers or review his schoolwork. Stevens spent between ten and

twelve hours with Sebastian, starting after he enrolled at the

Cardinal Cushing School. However, she never conducted a formal

assessment of him or observed him at BICO. Both Lasoski and

Stevens expressed the view that the IEPs proposed by the King

Philip school system were inappropriate for Sebastian. In

particular, Lasoski testified that the proposed IEPs failed to

emphasize the development of independent living skills. Stevens

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testified that the IEPs were inadequate as to vocational training,

social skills, and "functional academics."

The hearing officer gave little weight to this testimony.

Instead, she credited the testimony of educators who had worked

directly with Sebastian at BICO and observed his daily progress

there over a number of years. All of these educators testified

that the proposed IEPs offered an appropriate combination of

services designed to permit Sebastian to achieve meaningful

educational progress, including counseling services, occupational

therapy, social skills training, and vocational training.

The valuation of expert testimony is precisely the sort

of first-instance administrative determination that is entitled to

judicial deference by the district court. See J.E.W. ex rel. J.W.

v. Fresno Unified Sch. Dist., 626 F.3d 431, 446 (9th Cir. 2010);

Strawn v. Mo. State Bd. of Educ., 210 F.3d 954, 958 (8th Cir.

2000); cf. Lessard, 518 F.3d at 24 ("Judges are not trained

pedagogues, and they must accord deference to the state agency's

application of its specialized knowledge."). The testimony offered

by Lasoski and Stevens was controverted by Sebastian's educators,

who interacted with him regularly. The administrative record makes

clear that Lasoski and Stevens spent relatively little time with

Sebastian. Moreover, Lasoski never consulted Sebastian's teachers

or reviewed his schoolwork. Stevens never formally evaluated

Sebastian or observed him at BICO. Given this record, it was

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entirely proper for the district court to give due deference to the

hearing officer's weighing of the testimony offered by Lasoski and

Stevens. There was nothing clearly erroneous in that

determination.

B. The Services Offered by the Cardinal Cushing School

The hearing officer found that the Cardinal Cushing

School was "too restrictive a program" for Sebastian. She added

that the school "has only one limited off-site vocational

experience," and has not "provided data collection for this off-

site work experience." In addition, she found that Sebastian did

not have an opportunity to use public transportation at the

Cardinal Cushing School.

Sebastian and his parents contend that these findings are

inconsistent with evidence in the administrative record. In making

this argument, they miss a larger point. The Supreme Court has

explained that a state must subsidize the costs of a disabled

child's private education only if the private school placement is

adequate and the public school placement is inadequate. See

Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S.

7, 15 (1993); see also Sch. Comm. of Town of Burlington v. Dep't of

Educ. of Mass., 471 U.S. 359, 369-70 (1985); Mr. I. ex rel. L.I. v.

Me. Sch. Admin. Dist. No. 55, 480 F.3d 1, 23 (1st Cir. 2007).

Having discounted the testimony offered by Lasoski and Stevens that

the IEPs proposed by the King Philip school system were unsuitable

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for Sebastian, the hearing officer embraced the contrary view

espoused by Sebastian's educators that the proposed IEPs complied

with the IDEA. We have already decided that the district court did

not err in accepting this evaluation of expert testimony by the

hearing officer. This evaluation, in turn, was critical to the

hearing officer's finding, amply supported by the administrative

record, that Sebastian "made progress commensurate with his

ability" under his previous IEPs and likely "would have made more

progress if the [King Philip school system] had been permitted

. . . to implement the additional goals and objectives and services

proposed on the rejected IEPs." See D.B., 675 F.3d at 38 ("It

. . . was not error to conclude prospectively that, since [the

student's] previous IEPs had conferred meaningful educational

benefits, the [proposed] IEP was reasonably calculated to do the

same, having kept in place, and even supplemented, the services

offered by the previous IEPs.").

Therefore, Sebastian's public school placement at BICO

was adequate, and the services available to him at the Cardinal

Cushing School -- the alternative placement chosen by his parents

-- were immaterial to the outcome of this case. Even if the

hearing officer's findings as to those services were inconsistent

with the record evidence (and we do not suggest that they were),

there was no reversible error.

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 IV.

As noted above, a district court must independently

examine the administrative record in reviewing a hearing officer's

ruling. See D.B., 675 F.3d at 35-36. Sebastian and his parents

argue that the district court committed a legal error by failing to

discharge this responsibility and instead relying "almost

exclusively" on the hearing officer's factual findings. They note

that the district court cited extensively to the hearing officer's

findings in laying out the background of this case.

There is no basis for this claim of error. Because

"[d]etermining the adequacy of an IEP is a fact-intensive

exercise," Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1087 (1st

Cir. 1993), the district court described the background of this

case in considerable detail. In so doing, it cited the hearing

officer's findings. However, the district court also referred

throughout its decision to the administrative record. See, e.g.,

Sebastian M., 774 F. Supp. 2d at 406 ("[T]he administrative record

was comprehensive and provided a more-than-sufficient basis for the

Hearing Officer's findings."); id. at 407 ("[T]he administrative

record makes clear that transition planning was discussed at all of

Sebastian's team meetings."); id. ("[T]he record indicates that

Sebastian did, in fact, make some progress."). The district court

fulfilled its responsibility to review the administrative record in

reviewing the hearing officer's ruling.

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 The judgment of the district court is affirmed. Each

party shall bear its own costs.

So ordered.

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