Rome School Committee v. Mrs. B.

United States Court of Appeals
For the First Circuit
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No. 00-1746
No. 00-1763
No. 00-1870

ROME SCHOOL COMMITTEE,

Plaintiff, Appellee,

v.

MRS. B.,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

____________________

Before

Boudin, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lynch, Circuit Judge.

____________________

Richard L. O'Meara, with whom Krista N. Everly and Murray, Plumb
& Murray were on brief, for appellant.
Eric R. Herlan, with whom Drummond Woodsum & MacMahon was on
brief, for appellee.
____________________

April 26, 2001
____________________

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 LYNCH, Circuit Judge. This appeal is brought by Mrs. B., the

mother of a troubled boy, DC, whom she placed in a private residential

school in 1998 after rejecting the public school's proposed

Individualized Education Plan. That IEP instead proposed mainstreaming

the child into the local school for the 1998-99 school year. A hearing

officer found the proposed IEP from the Rome School Committee for that

year as well as the IEP proposed for the 1999-2000 school year to be

inadequate under the Individuals With Disabilities Education Act, 20

U.S.C. §§ 1400-1491, and ordered Rome to reimburse Mrs. B. for the

private school placement for those two years.

In the school system's suit challenging the hearing officer's

determination, the district court concluded, as had the reviewing

magistrate judge, that the hearing officer was wrong on the substance

-- that the IEPs were adequate. Nonetheless, the district court,

following precedent that a parent may rely on the hearing officer's

determination, held that Mrs. B. did not have to reimburse Rome for

payments it had made for the tuition and related expenses in those two

years. See Town of Burlington v. Dep't of Educ., 736 F.2d 773, 800-01

(1st Cir. 1984) ("Burlington II"), aff'd, 471 U.S. 359 (1985). This

holding was independent of the holding on the adequacy of the IEPs.

Mrs. B. has appealed. The school system has not. And DC,

apparently, continues at the private school, although we have nothing

in the record on that point or on any later IEPs the school system may

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have proposed. The purpose of Mrs. B.'s appeal, in large part, is to

be certain Rome cannot obtain reimbursement from her for the two school

years, 1998-2000. But there is no issue as to that, because Rome does

not appeal. Reimbursement is a different question than the merits of

the IEPs. Indeed, the IEPs proposed for the 1998-99 and 1999-2000

school years could have been adequate, but Mrs. B. still would not have

to reimburse Rome the tuition money it paid for those years. See

Burlington II, 736 F.3d at 800-01 (school is estopped from seeking

reimbursement from parent for school year covered by agency's decision

ordering reimbursement).1 Because there is no controversy as to

reimbursement, the adequacy of past IEPs is not before us. There is a

question, then, as to what remains before us.

We do not view the question of the IEP or the payment for the

current school year (2000-2001) as properly before us, as all of the

record evidence concerns a dispute about the prior two years.

Nonetheless, both parties assume that this court's view of the adequacy

of the IEPs for the two years, 1998-99 and 1999-2000, will have a

material bearing on any questions as to obligations of the school

system for the year 2000-2001, which soon concludes, and possibly

1 Put another way, neither the district court nor the hearing
officer concluded that the reason Rome should bear the costs for the
two years of residential placement was that this placement was the
required "free appropriate public education" for DC. The reimbursement
order was based on different grounds and has not been appealed. Even if
the reimbursement order had been appealed, the issue identified above
would not have necessarily been resolved.

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future years.

Issues arising from past IEPs often circumvent the mootness

doctrine because fundamental disputes over the correct interpretation

of the IDEA as to a particular student are "capable of repetition as to

the parties before it yet evading review." Board of Educ. v. Rowley,

458 U.S. 176, 186 n.9 (1982); see also Daniel R.R. v. State Bd. of

Educ., 874 F.2d 1036, 1041 (5th Cir. 1989) ("Given the parties

irreconcilable views on the issue, whether to and to what extent to

mainstream [the child] will be an issue every time [the school

district] prepares a new placement or IEP or proposes to change an

existing one.") (citing Honig v. Doe, 484 U.S. 305, 318-20 (1988));

Sacramento City Unified Sch. Dist., Bd. of Educ. v. Rachel H., 14 F.3d

1398, 1403 (9th Cir. 1994). Such controversies are likely to evade

review because the "administrative and judicial review of an IEP is

'ponderous' and usually will not be complete until a year after the IEP

has expired." Daniel R.R., 874 F.2d at 1041 (citing Burlington, 471

U.S. at 370).2

A common feature of these cases involving IDEA disputes

capable of repetition yet evading review is the possibility that the

2 The question of the procedural irregularities found by the
hearing officer and discounted by the district court will not recur.
Nonetheless, we comment that the hearing officer appears to have
improperly read Maine procedural law.
We have considered Mrs. B.'s argument that the district court
unlawfully referred her case for a recommended decision by the
magistrate judge, but we found it to be utterly without merit.

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school district would continue to adhere to a policy that violates the

IDEA. In Daniel R.R., for example, the court resolved differing

interpretations of the IDEA's requirement that learning disabled

students should be educated in the general curriculum -- the

"mainstreaming requirement." 874 F.2d at 1040-41. In Honig, the

Supreme Court ruled that an action concerning whether a school had

authority under the Act to unilaterally change a student's placement

was not moot because there was "a sufficient likelihood" that the

controversy would recur. 484 U.S. at 322-23.

The core of the controversy between Mrs. B. and Rome over the

adequacy of the IEP involves the extent of DC's needs for behavior

management services, a dispute which includes both questions of fact

and interpretations of the IDEA. The contours of any factual dispute

change shape as the years go on. Indeed, the IDEA recognizes that

children's needs change over time, and it thus requires annual

evaluation and development of an IEP for each school year. But the

parties' irreconcilable views on the extent to which the IDEA requires

a school to provide services to address a learning disabled child's

behavior problems is a controversy that is likely to recur as Rome

proposes new IEPs. Thus, we pause briefly to clarify a few points, not

as a ruling on the merits of past IEPs nor as a suggestion of a proper

placement for future school years, but to indicate the factors to be

included in a proper analysis under the IDEA.

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 States accepting federal funding must assure all learning

disabled children the right to a "free appropriate public education,"

20 U.S.C. § 1400(d)(1)(A), by providing "access to specialized

instruction and related services . . . individually designed to provide

educational benefit to the handicapped child," Rowley, 458 U.S. at 201.

Under the requirement of access to "related services," a school

district's special education program must include psychological

services if a learning disabled child's emotional disturbances

interfere with his ability to learn. See Roland M. v. Concord Sch.

Comm., 910 F.2d 983, 991-92 (1st Cir. 1990); 20 U.S.C. § 1401(3)

(defining the term "child with a disability"); 20 U.S.C. § 1401(22)

(listing "psychological services, . . . social work services, [and]

counseling services" as "related services"). The IDEA recognizes that

a "serious emotional disturbance" constitutes a disability if "by

reason thereof, [the child] needs special education and related

services." Id. § 1401(3)(A).

The hearing officer and the magistrate judge recognized that

behavior management services fall within the scope of services a school

district may be required to provide under the IDEA. But they differed

on the question whether DC's behavior interfered with his ability to

obtain educational benefit, and therefore the proper level of services

that should be addressed to DC's behavior needs. The magistrate judge

concluded that DC's behavior problems manifest themselves most

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frequently outside of school, and thus found adequate the level of

behavior management services in Rome's special education program.

There are some facts in the record, important to the hearing

officer, not accounted for in the magistrate judge's legal conclusions.

The district court must consider the state agency's findings carefully

and "endeavor to respond to the hearing officer's resolution of each

material issue." Burlington II, 736 F.2d at 792. For example, there

is ample evidence that DC's behavior problems did spill over into

school, interfering with his ability to obtain educational benefit.

Indeed, DC's third-grade teacher in April 1997 was so concerned about

DC's behavior management that he requested DC be given a one-to-one

aide for those purposes. The hearing officer cited several instances

of aggressive behavior by DC while in school, including hitting other

students, destroying property (including destroying playground

equipment with the consequent risk of injury to others), and, most

alarming, twice bringing a nine-inch buck knife to school. That

evidence factored heavily in the hearing officer's decisions and was

relevant to the determination of whether the services offered in Rome's

proposed IEPs were adequate. If the failure of the magistrate judge to

address in the legal analysis these aspects of DC's behavior issues

reflected a view that this evidence was not relevant, 3 then that view

3 Language in the magistrate judge's opinion suggests the view
that unless the child "was uncontrollable both in and out of school,"
thus "rendering him uneducable," the behavior does not need to be

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was in error.

Unless DC has made progress on managing his behavior from the

prior years, it is likely that any IEP must define the related services

DC requires in order to receive a free appropriate public education.4

There is a built-in flexibility in the statute's lack of precision, and

these types of determinations are better made by those involved in

designing a program tailored to meet a child's unique needs: the

members of the pupil evaluation team and Mrs. B.

Still, this does not mean the residential placement Mrs. B.

has settled on is required or that any residential placement is

required. Both the hearing officer and the district court concluded

that the placement at this residential school was not required. Even

if DC has since made academic progress at his residential school, that

fact does not establish that such a placement comprises "the requisite

adequate and appropriate education." Roland M., 910 F.2d at 990

(internal quotation marks omitted). All the school system must provide

addressed in the IEP. We know of no such rule. The question is
whether these behavioral disturbances interfered with the child's
ability to learn. See Roland M., 910 F.2d at 991-92.
4 Before the state hearing on the 1999-2000 IEP, an
alternative placement for DC became available at the Swasey School, a
private, state-approved special education school in Maine. The Swasey
School provides access to the general curriculum to students who are
experiencing difficulties (similar to DC's) in their present
educational setting and focuses on treating those behaviors that
interfere with the child's ability to learn. The parties have not yet
had the opportunity to fully consider that option.

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is an IEP which is "reasonably calculated" to provide an "appropriate"

education, as defined by the common standard in Maine and federal law.

Id. at 992. And within that context, Congress has in the IDEA

expressed a preference for mainstreaming. "Mainstreaming may not be

ignored, even to fulfill substantive educational criteria." Id. at

992-93.

The child, DC, is now in a different position than in

previous proceedings: the IDEA's "stay put" provision, a preference for

maintaining a child in his current placement throughout both the

administrative and judicial proceedings challenging a placement

decision, no longer applies because this judicial proceeding terminates

with this opinion. See Doe v. Brookline Sch. Comm., 722 F.2d 910, 915

(1st Cir. 1983).5 The IDEA requires Rome to generate an annual IEP

based on DC's current needs. If the parties cannot reach an agreement,

5 The hearing officer endorsed Mrs. B.'s unilateral placement
of DC only after finding that Rome had failed to provide DC with an
adequate educational program. That is a different issue, and one
viewed more favorably to the parent, than the question whether this
residential placement was required in order to provide a free
appropriate education to DC. See Burlington II, 736 F.2d at 799-801;
Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-13 (1993).
We note that our decision in Burlington II rested on our determination
that retrospective reimbursement by parents is not "appropriate" relief
available under the IDEA where parents have relied on an agency's
decision in their favor. Otherwise, "parents will be placed in the
difficult position of having to choose between the state directive to
maintain the child in the private placement at the risk of ultimately
using their own funds, or of moving the child to the town's placement
which the state agency has determined to be inadequate," which would
contravene the IDEA's stay-put provision. 736 F.2d at 800.

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they may then pursue the appropriate remedies as provided by the IDEA.

We make one final point. Congress mandated a system under

the IDEA of considerable involvement by parents together with school

systems in formulating IEPs. Judges are not experts on educational

theory. The education of DC will be best served by Mrs. B. and Rome

working together.

We dismiss Mrs. B.'s appeal. No costs are awarded.

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