Ms. M. Ex Rel. K.M. v. Portland School Committee

United States Court of Appeals
For the First Circuit

No. 03-2035

MS. M., as parent and next friend of K.M., a minor,

Plaintiff, Appellant,

v.

PORTLAND SCHOOL COMMITTEE,

Defendant, Appellee.

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

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.

Richard L. O'Meara, with whom Amy N. Sneirson and Murray,
Plumb & Murray were on brief, for appellant.
Eric R. Herlan, with whom James C. Schwellenbach and Drummond
Woodsum & MacMahon were on brief, for appellee.

March 9, 2004
 LYNCH, Circuit Judge. Ms. M., the parent of K.M.,

brought suit seeking reimbursement from the Portland, Maine school

district for K.M.'s sixth grade tuition for the 2001-2002 school

year at the Aucocisco School, a private school. She claims that

the Portland school district provided K.M., who suffers from

Attention Deficit Hyperactivity Disorder (ADHD), with an inadequate

sixth grade Individualized Educational Plan (IEP) under the

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

1400 et seq. Ms. M., in a second argument, also seeks to re-

characterize her tuition reimbursement claim as one for

compensatory education for the allegedly deficient educational

services provided to her son under the IEPs during his fourth and

fifth grade years at the Longfellow School, a public elementary

school in the Portland school district.

Parents who unilaterally remove their child from public

school because they believe that the special education services

provided for the child are inadequate are entitled to tuition

reimbursement for the costs of the private school placement under

some circumstances. Under the 1997 Amendments to IDEA, such

parents generally should give prior notice to the school system of

their rejection of the proposed IEP and their intent to enroll

their child in a private school at public expense, or, failing

that, must meet one of the four exceptions to the notice

requirement. 20 U.S.C. § 1412(a)(10)(C)(iii) & (iv). Here, the

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notice requirement was not met, but Ms. M. claims that she falls

within two different exceptions -- one involving illiterate parents

and the other involving the school system's failure to meet its own

notice obligations. Id. § 1412(a)(10)(C)(iv)(I) & (IV). The due

process hearing officer found as a matter of fact that Ms. M. did

not come within either exception and so denied the claim for

tuition reimbursement. The hearing officer did allow her to

receive reimbursement for the costs of an evaluation and tutoring

during K.M.'s fifth grade year; those costs are not at issue. On

appeal by Ms. M. from the hearing officer's adverse tuition

reimbursement holding, the district court agreed with the hearing

officer that she was not entitled to tuition reimbursement because

she had failed to give notice and that failure was not excused. We

too agree and affirm.

I.

The facts, which are largely undisputed, are taken from

the district court's opinion and supplemented from the record.

In 1995, Ms. M. enrolled her son, K.M., at Longfellow

School. K.M. had completed his kindergarten year at his previous

school, but repeated it at Longfellow because he exhibited

significant speech, language, and attentional deficits. In his

second year at Longfellow, while he was in first grade, K.M.'s

teacher became concerned that K.M. was still making inadequate

progress and referred him to a pupil evaluation team (PET). That

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team consisted of K.M.'s mother and grandparents, K.M.'s teacher,

the principal of Longfellow school, a psychological examiner, a

special educator, and a speech therapist. The PET identified a

large gap between K.M.'s intellectual abilities and his academic

performance and concluded that K.M. suffered from a learning

disability and was eligible for special education services.

The PET developed an IEP for K.M.'s second grade year,

which provided for K.M. to be taught in a regular classroom and to

receive eight hours a week of supplemental special education

services. Over the course of the next few years, the PET gradually

increased the amount of special education services that K.M.

received: his third grade IEP provided for eleven hours of special

education support a week, his fourth grade IEP for fourteen hours

a week, and his fifth grade IEP for nineteen hours a week.

Despite the school's focus on his learning problems, K.M.

continued to struggle academically throughout his time at

Longfellow. In third grade, a learning strategist observing K.M.

in the classroom noted that K.M. had difficulty with reading skills

and needed direct instruction. His tutor concluded that, at the

end of third grade, K.M.'s reading "comprehension was greatly

limited" and K.M. was "an initial [stage] reader." At the start of

K.M.'s fourth grade year, the school determined that K.M.'s reading

and writing skills remained only at first and second grade levels.

It also found that K.M. had delayed language and phonological

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processing skills. Later that year, K.M. failed to meet three of

the five benchmarks on a Maine standardized test, and only

partially met the other two.

In November of 2000, during K.M.'s fifth grade year, Ms.

M. and her brother, Tom L., presented the PET with a written

statement of concerns about K.M.'s progress; Ms. M. was assisted by

her brother because she suffers from a learning disability similar

to her son's. Following the meeting, Ms. M. obtained the

assistance of Donna Verhoeven, an educational advocate with the

Disabilities Rights Center in Maine, who supplemented Ms. M.'s

earlier list of concerns with a written request for a publicly

funded independent evaluation of K.M. The PET reconvened in

January 2001, and again in February, to discuss Ms. M.'s concerns.

The PET, which included Ms. M., Tom L., and Donna Verhoeven,

decided to increase K.M.'s special education services to over

twenty hours a week, provide him with homework assistance at 8 a.m.

(before school started), and start planning educational services

for K.M. over the summer. The team also agreed to have K.M.

independently tested by Dr. Slap-Shelton, a psychologist, as Ms. M.

had requested. Finally, the PET briefly discussed the educational

services that would be provided to K.M. in his sixth grade year.

On May 1, 2001, Ms. M. completed an application to enroll

K.M. at Aucocisco, a private school for learning disabled children.

About one week later, Ms. M., along with Tom L. and Donna

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Verhoeven, attended a PET meeting at Longfellow. At the meeting,

Dr. Slap-Shelton presented her evaluation of K.M. She explained

that K.M. suffered from dyslexia and "soft signs" of ADHD and made

numerous recommendations for improving K.M.'s IEP. After lengthy

discussion of Dr. Slap-Shelton's conclusions, the PET agreed on six

goals for K.M.'s upcoming sixth grade year. At no time in this

period did the plaintiff notify the school system that she was

considering a private placement. Nor did she disagree with the

PET's work to date.

The group met again on June 13 and, after lengthy

discussion, finalized the details of K.M.'s sixth grade program.

Once again, Ms. M. did not indicate to any other members of the PET

that she was considering removing K.M. from public school. Ms. M.

expressed some concerns about the proposed IEP plan, but she

neither approved nor rejected it. Rather, she indicated her desire

to continue discussions about improving the IEP. The other PET

members agreed to reconvene in early September. Nonetheless,

action was taken over the summer. Barbara Dee, the school's

director of special education, testified that she contacted Ms. M.

in July to schedule a date for a summer PET meeting and Ms. M. said

that, while she was willing to meet in the summer, she needed to

check with her brother and advocate about a date and would call Dee

back. Ms. M. never called back. In August, not having heard from

Ms. M., Dee again called to schedule a PET meeting, this time

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leaving a message on Ms. M.'s answering machine with several

possible dates over the summer. Again, Ms. M. did not return the

call. Ms. M. disputes that there was an offer for a PET meeting,

but her lack of memory does not make the district court's contrary

findings clearly erroneous.

On July 2, Portland sent Ms. M. the minutes of the June

PET meeting and the proposed IEP for K.M.'s sixth grade year. Ms.

M. concluded that the proposed IEP was inadequate and decided

unilaterally to enroll K.M. in Aucocisco. But she did not notify

the school system of her disagreement. By August 17, Ms. M. had

made the initial deposit to Aucocisco for tuition. She did not

inform any Longfellow school official of her choice.

In a handwritten letter dated September 11, 2001, Ms. M.

informed the school that she found the IEP unsatisfactory, that

K.M. was attending the Aucocisco school, and that no more PET

meetings would be necessary. This was the first time that anyone

in the Portland public school system became aware that Ms. M. was

removing K.M. from public school, and the first notice to Portland

of outright rejection of the IEP.

On November 20, 2001, Ms. M. informed the Portland school

district that she intended to seek reimbursement for K.M.'s

Aucocisco tuition. Over the period of the next few months, Ms. M.

met with the other PET members several times to determine whether

they could agree on an IEP that would provide K.M. with a suitable

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education in public school. Ms. M. and the school district were

unable to reach an agreement on the matter, and on March 13, 2001,

the school district requested a due process hearing, 20 U.S.C. §

1415 and Me. Rev. Stat. Ann. tit. 20-A, § 7207-B, arguing, inter

alia, that it was not responsible for K.M.'s tuition at Aucocisco.

Ms. M. responded that the school district had failed to provide

K.M. with a free appropriate public education (FAPE), and was

responsible not just for his tuition at Aucocisco, but also for

compensatory education stemming from alleged deficiencies in K.M.'s

fourth and fifth grade education.

On June 10, 2002, after hearing testimony from twelve

witnesses, the hearing officer denied Ms. M. tuition reimbursement.

She reasoned that under 20 U.S.C. § 1412(a)(10)(C)(iii), Ms. M. did

not provide the school district with sufficient notice of her

intent to remove K.M. from public school.1 She also found that Ms.

M. did not fit within any of the exceptions to the statute's notice

provision. 20 U.S.C. § 1412(a)(10)(C)(iv). Ms. M., she concluded,

was not illiterate within the meaning of the statute and had been

provided with adequate notice of her own obligation to provide

prior notice before removing K.M. from public school. The hearing

officer did, however, grant Ms. M. compensation for the costs of

1
The hearing officer also found that the IEP proposed for
K.M.'s sixth grade year was reasonably calculated to provide K.M.
with FAPE. Because we decide the reimbursement issue on the ground
of insufficient notice, we do not review this holding.

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the evaluation performed by Dr. Slap-Shelton and for the costs of

certain tutoring services provided to K.M. in fifth grade.

II.

Ms. M. brought suit in Maine Superior Court challenging

the hearing officer's decision, 20 U.S.C. § 1415(i)(2)(A) and Me.

Rev. Stat. Ann. tit. 20-A, § 7207-B(2)(B), and the school district

removed the case to federal court, 28 U.S.C. § 1441(b). The

district court affirmed the hearing officer's decision, adopting

the magistrate judge's recommended findings of fact and conclusions

of law. The district court opinion rejected the argument that the

hearing officer had erred in concluding that Ms. M. did not fit

within any of the exceptions to the notice requirement.2 It found

that the hearing officer was correct that Ms. M. was not illiterate

and had received a procedural-safeguards notice from the school

explaining IDEA's notice requirement. The district court opinion

also rejected Ms. M.'s claim for tuition reimbursement as a form of

compensatory education for K.M.'s allegedly deficient fourth and

fifth grade education.3

2
The opinion also rejected Ms. M.'s argument that the hearing
officer had erred in evaluating the IEP as it stood in February
2002 rather than June 2001 and found that, in any case, that
distinction was irrelevant because both IEPs provided K.M. with
FAPE. We do not address either of these conclusions.
3
The district court held that compensatory education was not
available to Ms. M. because her claim depended on challenging the
content of K.M.'s fourth and fifth grade IEPs, rather than the
implementation of those IEPs.

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 III.

In 1997, Congress significantly amended IDEA and, in the

process, clarified the circumstances in which parents who

unilaterally remove their children from private school may receive

tuition reimbursement. Pub. L. No. 105-17, 111 Stat. 37 (1997).

That amendment is discussed in our recent opinion Greenland Sch.

Dist. v. Amy N., Nos. 03-1668, 03-1697, 2004 U.S. App. LEXIS 3237

(1st Cir. Feb. 23, 2004). As part of those amendments, Congress

provided that:

The cost of reimbursement . . . may be reduced or
denied [] (I) if (aa) at the most recent IEP
meeting that the parents attended prior to removal
of the child from the public school, the parents
did not inform the IEP Team that they were
rejecting the placement proposed by the public
agency to provide a free appropriate public
education to their child, including stating their
concerns and their intent to enroll their child in
a private school at public expense; or (bb) 10
business days (including any holidays that occur on
a business day) prior to the removal of the child
from the public school, the parents did not give
written notice to the public agency of the
information described in division (aa).

20 U.S.C. § 1412(a)(10)(C)(iii); Rafferty v. Cranston Pub. Sch.

Comm., 315 F.3d 21, 27 (1st Cir. 2002).

There is no dispute that Ms. M. did not satisfy this

notice requirement and that, under normal circumstances, the

hearing officer would by statute be entitled to deny the equitable

remedy of tuition reimbursement. See Rafferty, 315 F.3d at 27;

Greenland, 2004 U.S. App. LEXIS 3237, at *23-*32. Ms. M. argues,

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however, that the notice requirement was not applicable here

because she fits within both the illiteracy exception and the

exception for the school district's failure to provide § 1415

notice:

Notwithstanding the notice requirement in clause
(iii)(I), the cost of reimbursement may not be
reduced or denied for failure to provide such
notice if -- (I) the parent is illiterate and
cannot write in English . . . or (IV) the parents
had not received notice, pursuant to [20 U.S.C. §
1415], of the notice requirement in clause
(iii)(I).

20 U.S.C. § 1412(a)(10)(C)(iv).

Starting with the illiteracy exception, Ms. M. argues

that the district court erred in relying on several letters that

she wrote to the PET because those letters only demonstrated "the

mere capability to copy words and sentences composed by another

person." She argues that the evidence established that she reads

only at a third grade level and was only able to write the letters

sent to the PET by copying into her own handwriting letters

composed by someone else.

Although Ms. M. frames her argument as a question of law,

her objection is fundamentally to the factual determination that

she is not illiterate. Neither the hearing officer nor the

district court concluded as a matter of law that an individual with

no understanding of written words who can merely copy an existing

document is literate under § 1412(a)(10)(C)(iv). Instead, the

district court merely held that while Ms. M. may have difficulty

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reading and writing, the hearing officer correctly determined as a

factual matter that she was not illiterate. Because this is a

factual determination, our review is for clear error on the record

as a whole. Gonzalez v. P.R. Dep't of Educ., 254 F.3d 350, 352

(1st Cir. 2001); Kathleen H. v. Mass. Dep't of Educ., 154 F.3d 8,

13 (1st Cir. 1998).

It was not clearly erroneous for the district court to

conclude that Ms. M. is not illiterate. The district court's

holding did not rest alone on the letters that Ms. M. signed. Ms.

M. is a high school graduate, and while K.M.'s teachers knew that

she had difficulty writing, they had "no indication that she was

unable to read." Ms. M. also completed the written application to

Aucocisco, which the hearing officer concluded "containe[d] well-

formed words and language that is clear, despite some grammatical

errors." Finally, when Ms. M. enrolled K.M. in kindergarten, she

filled out a school questionnaire in her own handwriting in which

she indicated that she read stories to K.M.

As to the second exception for parents who have not been

informed of IDEA's prior notice requirement pursuant to 20 U.S.C.

§ 1415(d), there was no error. Ms. M. admits that she received

notices of her procedural obligations during the months preceding

the June 2001 PET meeting, but she says the school system failed to

establish that those notices complied with the 1997 Amendments to

IDEA and were not earlier versions of the school's standard forms.

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Though the precise forms were not put in evidence, there was

testimony that the standard forms were updated by November 2000.

This was well before Ms. M. received her final procedural-

safeguards notice: Ms. M. said that she had received procedural-

safeguards notices for "most of the PETs during K.M.'s fifth grade

year." One of those meetings was on May 9, 2001, and another on

July 13, 2001.

Stressing that the language of the statute permits some

discretion as to tuition reimbursement even in the absence of

notice by parents whose children are receiving special education in

public schools, Ms. M. argues that the decision to deny her tuition

reimbursement was unfair because she made at most an "innocent

mistake." Even before the 1997 Amendments, parents who acted

unilaterally did so at their own financial risk. Burlington Sch.

Comm. v. Dep't of Educ. of Mass., 471 U.S. 359, 373-74 (1985). The

1997 Amendments tightened up the circumstances under which

reimbursement was to be allowed. See Greenland, 2004 U.S. App.

LEXIS 3237, at *24-*26. There was no abuse of discretion. The

evidence established that Ms. M. failed to return two different

phone calls by Barbara Dee in which Dee was attempting to set up

meetings during the summer. Rather than return these calls and

explain her intent to remove K.M. from private school, Ms. M.

removed K.M. without notifying the school and giving it an

opportunity to respond. She had the assistance of an advocate who

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knew the field, as well as her brother. The equities on the notice

issue do not favor Ms. M.

In a final effort to avoid the consequences of failing to

follow IDEA's prior notice requirement, Ms. M. refashions her claim

for tuition reimbursement as a claim for compensatory education

stemming from the allegedly deficient education that K.M. received

in fourth and fifth grade.4 But her attempt to circumvent the

statutory notice requirement for tuition reimbursement fails. The

facts of this case bring it directly within the terms of the

limitation on reimbursement contained in the 1997 Amendments.

Given that Congress has imposed statutory restrictions on the

equitable remedy of tuition reimbursement that are directly

applicable here, allowing Ms. M. to pursue a compensatory education

claim for tuition reimbursement would undercut the statute.

Moreover, when this court has used the term "compensatory

education," it has usually assumed that the remedies available

involve prospective injunctive relief, which would not encompass

tuition reimbursement. See, e.g., Me. Sch. Admin. Dist. No. 35 v.

R., 321 F.3d 9, 18 (1st Cir. 2003) (compensatory education entitles

recipient "to further services, in compensation for past

4
The hearing officer in this case did, in fact, find that Ms.
M. was entitled to compensation for certain deficiencies in K.M.'s
fifth grade IEP, and ordered the school to reimburse Ms. M. for the
costs of private tutoring K.M. received and that should have been
provided for free by the school. The school district does not
appeal this holding.

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deprivations, even after his or her eligibility [for special

education services under IDEA] has expired"); Pihl v. Mass. Dep't

of Educ., 9 F.3d 184, 188 (1st Cir. 1993); see also G. v. Fort

Bragg Dependent Schs., 343 F.3d 295, 309 (4th Cir. 2003)

("Compensatory education involves discretionary, prospective,

injunctive relief . . . .").

Given our holding that tuition reimbursement, the only

remedy Ms. M. seeks, is not available here as a form of

compensatory education, we need not determine when claims of

compensatory education are generally cognizable.5

IV.

The judgment of the district court is affirmed. No costs

are awarded.

5
At least one court has held that the compensatory education
remedy is limited to challenges to the implementation of the IEP --
such as when the school system fails to provide the services set
forth therein -- and does not apply to a second category of claims
challenging the content of past IEPs. See Rome Sch. Comm. v. Mrs.
B., No. 99-CV-20-B, 2000 U.S. Dist. LEXIS 2949, at *39 (D. Me. Mar.
8, 2000). Ms. M.'s claim is not that Portland failed to provide
the services specified in the fourth and fifth grade IEPs, or that
it otherwise failed to implement those IEPs appropriately. Rather
the claim appears to fit in the second category -- that the results
of the IEPs were unsatisfactory because their content was somehow
flawed. We do not decide the point.

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