United States Court of Appeals
For the First Circuit
No. 08-2244
MARK LESSARD and LINDA LESSARD,
Plaintiffs, Appellants,
v.
WILTON-LYNDEBOROUGH COOPERATIVE SCHOOL DISTRICT,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin, Circuit Judge,
and Saylor,* District Judge.
Richard L. O'Meara with whom Nicole L. Bradick and Murray,
Plumb & Murray were on brief for appellants.
Eric R. Herlan with whom Peter C. Felmly and Drummond Woodsum
& MacMahon were on brief for appellee.
January 20, 2010
*
Of the District of Massachusetts, sitting by designation.
Per Curiam. Stephanie Lessard, a New Hampshire resident
with multiple disabilities, is entitled to receive a free
appropriate public education under the Individuals with
Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400, 1412(a)(1),
(5), et seq. (2004).1 She is speech-language impaired, mentally
retarded, and orthopedically impaired according to New Hampshire
special education regulations. She has received special education
services since the age of three and had reached the age of nineteen
at the time of the dispute that resulted in this appeal.
In 2001, Stephanie began attending the Crotched Mountain
Rehabilitation Center ("CMRC"), a New Hampshire facility providing
special education services to the Wilton-Lyndeborough Cooperative
School District. Although CMRC includes residential facilities,
Stephanie attended as a day student and commuted by bus. Her
parents came to disfavor Stephanie's placement, believing that she
had failed to display adequate academic development and that her
placement at CMRC was the cause of extreme and aggressive
1
Under 20 U.S.C. § 1401(8), a free appropriate public
education is defined as:
[S]pecial education and related services that-- (A) have
been provided at public expense, under public supervision
and direction, and without charge; (B) meet the standards
of the State educational agency; (C) include an
appropriate . . . education in the State involved; and
(D) are provided in conformity with the individualized
education program required under section 1414(d) of this
title.
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behavioral problems that she exhibited while at CMRC and while
traveling there.
From April through September 2005, the team managing
Stephanie's case met six times and developed a seventy-seven-page
individualized education program ("IEP") addressing Stephanie's
panoply of needs for the 2005-06 school year. The Lessards were
unhappy with aspects of the proposed plan; the team agreed to some
modifications but not others. The parents also opposed Stephanie's
continued placement at CMRC or an alternative special day school
offered by the team, and requested instead a home- and
community-based program in which an outside vendor would work
closely with Stephanie to help acclimate her to basic life skills
and means of community interaction.
No agreement was reached, and the Lessards refused to
consent to the 2005-06 IEP. The 2004-05 IEP therefore remained in
effect pursuant to IDEA's "stay put" provision, 20 U.S.C. §
1415(j),2 and the Lessards ultimately withdrew Stephanie from CMRC
in late December 2005. The school district filed a request for a
due process hearing, see 20 U.S.C. § 1415(f), to determine the
suitability of the proposed IEP; a two-day hearing involving
multiple witnesses and several thousand pages of documentary
2
The 2004-05 IEP, which the Lessards also challenged, was
upheld by this court. Lessard v. Wilton-Lyndeborough Coop. Sch.
Dist., 518 F.3d 18 (1st Cir. 2008). Many although not all of the
arguments made in this appeal are similar to those made in the
earlier one.
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evidence was held on March 13 and March 31, 2006. In July 2006,
the hearing officer upheld the school district's proposed 2005-06
plan and placements.
The Lessards then brought the present action for review
of the hearing officer's decision, seeking an award of compensatory
educational services for Stephanie. 20 U.S.C. § 1415(i)(2)(A).
The district court upheld the hearing officer's ruling, Lessard v.
Wilton-Lyndeborough Coop. Sch. Dist., No. 06-cv-423, 2008 WL
3843913, at *10 (D.N.H. Aug. 14, 2008), and the Lessards now appeal
to this court. The framework for review of the district court
decision is conventional: clear error with respect to factual
findings and de novo for the legal findings. C.G. ex rel. A.S. v.
Five Town Cmty. Sch. Dist., 513 F.3d 279, 284 (1st Cir. 2008).
The ultimate issue is whether the plan conforms to
requirements. In both the district court and this one, as is
common when both are reviewing an agency decision, the underlying
judgment of those framing the plan is given considerable weight.
See Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir.
1990), cert. denied, 499 U.S. 912 (1991). The standard of review
is thus deferential to the educational authorities, who have
"primary responsibility for formulating the education to be
accorded a handicapped child, and for choosing the educational
method most suitable to the child's needs." Bd. of Educ. v.
Rowley, 458 U.S. 176, 207 (1982).
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The child's educational program and placement must be
outlined in an IEP, and the IEP must be tailored to the child; but
the details depend on the situation of the child. Me. Sch. Admin.
Dist. No. 35 v. Mr. R., 321 F.3d 9, 20 (1st Cir. 2003). And while
an IEP must be "reasonably calculated" to deliver "educational
benefits," Rowley, 458 U.S. at 207, an ideal or perfect plan is not
required. Lessard, 518 F.3d at 23-24; see also C.G. ex rel. A.S.,
513 F.3d at 284; Mr. R., 321 F.3d at 11; G.D. v. Westmoreland Sch.
Dist., 930 F.2d 942, 948 (1st Cir. 1991) (IDEA-provided education
need not be "the only appropriate choice, or the choice of certain
selected experts, or the child's parents' first choice, or even the
best choice").
The hearing officer concluded that "[Stephanie] has
received educational benefits from all of the programs provided in
the 2004-2005 IEP" and that "[i]t is reasonable to assume that this
progress would continue in some fashion through the implementation
of an enhanced 2005-2006 IEP." These conclusions were supported by
testimony from a number of therapists and coordinators who worked
with Stephanie at CMRC. On appeal, the Lessards argue (1) that the
IEP was inadequate because it failed to provide appropriate
literacy and transitional services, and (2) that the placement at
CMRC was overly restrictive and otherwise harmful.
The first argument stems in part from the Lessards'
request that the IEP incorporate a literacy program called the
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Lindamood Phoneme Sequencing Program, otherwise known as "LiPS,"
and provide an instructor already experienced with the method. The
LiPS program was recommended by Dr. Robert Kemper, who performed a
psycholinguistic evaluation of Stephanie at the Lessards' request.
When the school district redrafted the IEP to include this approach
but provided only a speech pathologist newly trained in the method,
the Lessards switched positions, favoring the "Davis" approach
because (they say) the school district's proposed LiPS instructor
lacked the hands-on LiPS experience recommended by Dr. Kemper.
The district court sustained the hearing officer's
findings that "the Lessards' additional experience requirement was
not sufficient to invalidate the LiPS program offered in the IEP,"
"that the Lessards had not shown that the multisensory program then
being used at CMRC was inappropriate," and "that [Stephanie] was
receiving educational benefits from the CMRC reading program."
Lessard, 2008 WL 3843913, at *6. These findings are adequately
supported: the record contains testimony from Stephanie's teachers
indicating that she was progressing at a level commensurate with
her cognitive profile.
Perhaps Stephanie might have benefitted even more if Dr.
Kemper's recommendations had been followed in full--the thrust of
some of the Lessards' evidence--but that is not the test: what is
"appropriate" depends on expert judgment, available options and
indications of progress. The hearing officer found that the school
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district attempted in good faith to accommodate the Lessards'
instructional requests, and the proposed 2005-06 IEP was quite
different from its earlier incarnations under which Stephanie may
have failed to progress adequately. That the 2004-05 IEP may have
been unsuccessful in this respect does not mean that it was itself
ex ante an unreasonable choice. See Lessard, 518 F.3d at 23-24;
see also Lachman v. Ill. State Bd. of Educ., 852 F.2d 290, 297 (7th
Cir. 1988), cert. denied, 488 U.S. 925 (1988).
The Lessards' challenge to the IEP's transitional
services is that the IEP failed to offer Stephanie sufficient
interaction with her community. A similar argument, however, was
rejected in the Lessards' challenge to Stephanie's 2004-05 IEP,
Lessard, 518 F.3d at 29-30, and the proposed 2005-06 IEP "included
'a significant increase in services in the area of pre-vocational
skills,'" Lessard, 2008 WL 3843913, at *7 (quoting the hearing
officer)--for example, it increased the number of minutes per week
of pre-vocational classroom instruction and added course
instruction in horticulture and home economics.
The Lessards' second basic objection to the proposed
2005-06 IEP is that it failed to place Stephanie in the least
restrictive environment in which she could receive educational
benefits, as is required. 20 U.S.C. § 1412(a)(5); 34 C.F.R. §
300.115 (2009); see also Kathleen H. v. Mass. Dep't of Educ., 154
F.3d 8, 11 (1st Cir. 1998). New Hampshire regulations provide a
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table of potential placement categories; regular classroom
instruction is the least restrictive option under this table while
instruction at a hospital or institution is the most restrictive.
N.H. Code. Admin. R. Ann. Ed. 1115.04 tbl.1100.2 (2002).
The table classes full-time or part-time placement at a
special day school as less restrictive than home instruction. Id.
The Lessards argue that the CMRC is more akin to a hospital or
institutional placement, as many students who attended CMRC were
more severely disabled than Stephanie and resided permanently at
the facility. The CMRC does have residential facilities, but it
also runs an approved, licensed special day school, and Stephanie
attended that day school and returned home each evening to spend
time with her family and in her community.
The Lessards also say that their own proposal should not
be seen as strictly "home instruction" under New Hampshire's regime
because it would have included significant community-based
interaction and thus would have been less restrictive than
placement at CMRC. New Hampshire regulations describe home
instruction as "receiv[ing] all or a portion of [the student's]
special education program at home," N.H. Code. Admin. R. Ann. Ed.
1115.04 tbl.1100.2 (emphasis added), and we cannot say that the
district court erred in thus categorizing the Lessards' proposal.
Pointing to Stephanie's behavioral outbursts while at and
being transported to CMRC, the Lessards finally contend that
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Stephanie's placement at CMRC was emotionally damaging to her. Cf.
Colin K. v. Schmidt, 536 F. Supp. 1375, 1387 (D.R.I. 1982)
(placement is inappropriate if it results in emotional harm to the
child), aff'd, 715 F.2d 1 (1st Cir. 1983). The district court
permissibly found that the Lessards had not shown CMRC to be the
cause of this behavior and that Stephanie's behavior was improving.
Stephanie did continue to exhibit some behavioral problems, but
these seemed to decrease in frequency over time, and the IEP
included a number of measures addressing such problems.
Parents understandably want the very best for their
children, whether disabled or not, and the Lessards' vigorous
advocacy is in this respect commendable. Nevertheless, given the
deferential standard that prevails, our review confirms that
Stephanie was afforded a free appropriate public education pursuant
to IDEA in the least restrictive environment and so we affirm the
judgment of the district court.
It is so ordered.
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