United States Court of Appeals
For the First Circuit
No. 03-1988
LT. T.B. and E.B., on behalf of their minor son N.B.; N.B.,
Plaintiffs, Appellants,
v.
WARWICK SCHOOL COMMITTEE; WARWICK SCHOOL DEPARTMENT; ROBERT
CUSHMAN, FRANK PICOZZI, JOYCE LYNN ANDRADE, JOHN F. THOMPSON,
PH.D., ROBERT J. SHAPIRO, and JOSEPH A. HARRINGRON, in their
capacity as members of the Warwick School Committee,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, Chief U.S. District Judge]
Before
Boudin, Chief Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Peter F. Carr, II, with whom Eckert Seamans, Cherin & Mellott
LLC, James T. Murphy, and Hanson Curran LLP were on brief, for
appellants.
Jon M. Anderson, with whom Darlene K. Alt and Edwards & Angell
LLP were on brief, for appellees.
March 18, 2004
LYNCH, Circuit Judge. This case concerns a claim under
the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.
§ 1400 et seq., for tuition reimbursement for the private school
placement of an autistic child after his parents rejected the plan
offered by the public school.
I.
The B.'s moved to Warwick, Rhode Island from Georgia on
April 11, 2000, when Lt. T.B., an officer in the United States
Navy, was reassigned. One of the children, N.B., suffers from
autism. N.B. had been in a special needs kindergarten program in
Georgia and was almost seven at the time of the move. Mrs. B first
contacted the Warwick School District on March 29, 2000 to find out
what special educational services would be available for N.B. in
Warwick.
Warwick acted quickly. It sent a letter to Mrs. B on
April 4 to schedule a meeting, reviewed N.B.'s records, and
assembled a team, which met on April 13 with Mrs. B and her
advocate from Families for Early Autism Treatment. On April 13,
Warwick proposed an initial Individualized Educational Program
(IEP) for N.B., which would be subject to review several weeks
after N.B. started school. The IEP would have kept N.B. in a self-
contained Warwick classroom that had been recently established for
autistic children of his age and that used a modified version of
educational techniques known as Treatment and Education of Autistic
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and Communication-Handicapped Children (TEACCH). The B.'s rejected
the IEP and gave notice of their intent to enroll N.B. instead in
a private school, the Pathways Strategic Learning Center, which
uses a different technique known as Discrete Trial Training (DTT).
On May 4, Warwick proposed another IEP to the B.'s, who were
accompanied by counsel at the meeting. The B.'s rejected that IEP,
enrolled N.B. at Pathways, and requested a due process hearing.
The hearing officer, after a twenty-day evidentiary
hearing in late 2000 and early 2001, sided with the B.'s. In a
March 5, 2001 order, the hearing officer determined that Warwick
had violated its procedural obligations under the IDEA. See 20
U.S.C. § 1415. This finding primarily reflected two concerns: (1)
that Warwick lacked sufficient knowledge of N.B. to determine that
non-DTT techniques would work for him when it proposed its IEP and
(2) that Warwick had pre-determined that N.B. would be placed in
the Warwick school system. As a result, the hearing officer
reasoned that the burden shifted from the parents to the school
system on the issue of the substantive adequacy of the IEP1 and
then concluded, based on a very brief analysis, that the school
system had not met its burden. The hearing officer ordered Warwick
1
This statement is puzzling because the school district
always bears the burden in the due process hearing of showing that
its proposed IEP is adequate. See Grim v. Rhinebeck Cent. Sch.
Dist., 346 F.3d 377, 379 (2d Cir. 2003); E.S. v. Indep. Sch. Dist.,
No. 196, 135 F.3d 566, 569 (8th Cir. 1998); Clyde K. v. Puyallup
Sch. Dist., No. 3, 35 F.3d 1396, 1398 (9th Cir. 1994); Fuhrmann v.
East Hanover Bd. of Educ., 993 F.2d 1031, 1035 (3d Cir. 1993).
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to pay the costs of N.B.'s tuition at Pathways henceforth2 and to
reimburse the parents for the tuition they had paid from September
21, 2000, when Warwick received notice of the due process hearing,
through the date of the hearing.3
Armed with their victory, the B.'s went to federal court
seeking attorneys' fees and costs under 20 U.S.C. § 1415(i)(3)(B).
Warwick counterclaimed, challenging the hearing officer's findings
that it had committed material procedural violations and had denied
N.B. a Free Appropriate Public Education (FAPE) in its proposed
IEP. This time, the school system won. On June 6, 2003, the
district court issued a careful 46-page opinion, finding that any
procedural violations were not sufficiently material to justify
rejection of the IEP or tuition reimbursement and that the proposed
IEP did not substantively deny N.B. FAPE. Judgment was entered in
favor of Warwick on its counterclaim, and the parents' request for
attorneys' fees was dismissed.
On appeal, the B.'s argue that the district court gave
insufficient deference to the hearing officer and that, in any
2
Specifically, the Hearing Officer found Warwick's
proposed IEP to be inappropriate and the Pathways programs to be an
adequate substitute. She then gave Warwick 45 days to complete a
full initial evaluation of N.B. At that point, if Warwick still
failed to come up with an adequate IEP, it would be obligated to
pay N.B.'s tuition at Pathways thereafter.
3
The hearing officer also justified the tuition
reimbursement order on the ground that the school system had
violated its "stay put" obligations, but all parties agree this was
in error and should be disregarded.
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event, the court's conclusions were not supported by the record.
At stake is whether Warwick must continue to pay N.B.'s tuition at
Pathways and whether it must reimburse the B.'s for the tuition
that they paid Pathways from September 21, 2000, when Warwick
received notice of the due process hearing, until March 5, 2001,
when the hearing officer issued her decision. Since the hearing
officer's decision, Warwick has been paying N.B.'s Pathways tuition
during the pendency of this action under IDEA's stay-put provision,
20 U.S.C. § 1415(j).
II.
We find no basis to upset the district court's careful
analysis and affirm largely on the basis of its opinion, with these
comments.
Autism is very difficult for parents, as well as
teachers, to handle, and there are divergent theories as to the
best treatment. The B.'s are firm in their belief that their son
will benefit only from the treatment program available at Pathways
and are admirable in their efforts to do what they think is best
for their son. Nonetheless, under the Supreme Court's decision in
Board of Educ. v. Rowley, 458 U.S. 176 (1982), IDEA does not
require a public school to provide what is best for a special needs
child, only that it provide an IEP that is "'reasonably calculated'
to provide an 'appropriate' education as defined in federal and
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state law." Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992-93
(1st Cir. 1990) (quoting Rowley, 458 U.S. at 207 (1982)).
The B.'s argue that the 1997 amendments to IDEA, Pub. L.
No. 105-17, 111 Stat. 37 (1997), changed this standard to require
school districts to provide the "maximum benefit" to special needs
children. They point out that the IDEA now contains legislative
findings emphasizing the importance of training teachers to help
special needs children "meet . . . , to the maximum extent
possible, those challenging expectations that have been established
for all children" and prepare them to "lead productive,
independent, adult lives, to the maximum extent possible." 20
U.S.C. § 1400(c)(5)(E).
We do not interpret this statutory language, which simply
articulates the importance of teacher training, as overruling
Rowley. This court has continued to apply the Rowley standard in
cases following the 1997 amendments, see, e.g., Rome Sch. Comm. v.
Mrs. B., 247 F.3d 29, 33 (1st Cir. 2001), as have several of our
sister circuits, see Mo. Dep't of Elem. & Secondary Educ. v.
Springfield R-12, No. 02-3765, 2004 U.S. App. LEXIS 3883, at *14
n.7 (8th Cir. March 1, 2004); Evanston Cmty. Consol. Sch. Dist. No.
65 v. Michael M., 356 F.3d 798, 802, 804 (7th Cir. 2004); A.B. ex
rel. D.B. v. Lawson, 354 F.3d 315, 319 (4th Cir. 2004). And that
is for good reason. The Rowley standard recognizes that courts are
ill-equipped to second-guess reasonable choices that school
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districts have made among appropriate instructional methods.
Roland M., 910 F.2d at 992; see also Rowley, 458 U.S. at 207-08.
A. Standard of Review
The parties disagree over our standard of review.
Warwick argues that our review is for clear error, whereas the
plaintiffs argue that our review of the district court opinion is
de novo and must accord "due weight" to the hearing officer's
decision. We attempt to clarify the standard of review here.
There is a distinction between the standard applied on the district
court's review of the hearing officer's decision and that applied
on this court's review of the district court's decision.
The 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." Roland M., 910 F.2d at 989 (quoting Town of Burlington
v. Dep't of Educ., 736 F.2d 773, 790 (1st Cir. 1984)). That
independence is tempered by the requirement that the court give
"due weight" to the hearing officer's findings. Id. (quoting
Rowley, 458 U.S. at 207, and Colin K. v. Schmidt, 715 F.2d 1, 5
(1st Cir. 1983)). This intermediate level of review reflects the
concern that courts not substitute their own notions of educational
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policy for that of the state agency, which has greater expertise in
the educational arena.4 Id. (citing Rowley, 458 U.S. at 207).
In the absence of a mistake of law, the court of appeals
must uphold the district court's conclusion about the adequacy and
appropriateness of an IEP so long as that conclusion is not clearly
erroneous on the record as a whole. Id. at 990; Lenn v. Portland
Sch. Comm., 998 F.2d 1083, 1087 (1st Cir. 1993). The adequacy of
an IEP is a mixed question of fact and law. Roland M., 910 F.3d at
990. Because this determination is, in essence, a judgment call,
this court applies the clearly erroneous standard of review even
when the district court does not hear evidence on its own. See id.
at 990 (expressly rejecting the argument that clear error review
should not apply when the district court decides the case entirely
on the basis of the administrative record).
B. Procedural Violations
The plaintiffs argue that the hearing officer correctly
found that Warwick had an inadequate basis on which to evaluate the
child. In particular, they focus on the fact that Warwick had not
met with N.B. and did not have a complete set of records at the
time it met with Mrs. B. IDEA regulations require that the team
4
Here, the district court successfully avoided this
danger. Warwick expressed an educational policy choice in its IEP,
which the hearing officer rejected largely on procedural, not
substantive, grounds. In the end, by reversing the hearing
officer's decision, the district court reinstated the policy choice
of the school system.
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members be "knowledgeable about the child, the meaning of the
evaluation data, and the placement options." 34 C.F.R. §
300.552(a)(1). Whether the team must meet the child to perform an
evaluation surely depends on the situation, particularly the
availability of other information. There is no per se rule that
unless the child is seen and heard by the team, the procedures for
preparing an IEP have been violated. See Holland v. D.C., 71 F.3d
417, 422-23 (D.C. Cir. 1995); Carroll v. Capalbo, 563 F. Supp.
1053, 1058 (D.R.I. 1983) ("Nowhere in the regulations is there a
requirement that school personnel must themselves perform the
evaluation."). Here, Warwick did ask to meet with N.B., but Mrs.
B. did not receive the request in time to allow the team to meet
N.B. before the April 13 meeting.
As to the availability of other information, on March 30,
before the family moved to Rhode Island, Mrs. B. delivered to
Warwick a packet of materials that contained evaluations of N.B.
made in Georgia within the last year by experts in the various
fields in which N.B. had special needs. The school system reviewed
the materials and asked her to sign a release so they could get
more materials. Mrs. B., who was in the process of moving, said
she did not get the request.
Warwick reviewed all the records available at the time,
met with Mrs. B. for six hours over two different days (April 13
and May 4), and assembled a team with considerable expertise in
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autism. The team read the prior evaluations of N.B., along with
additional evaluation materials provided by Mrs. B. at the April 13
meeting, and heard from his mother and her special education lawyer
about various educational techniques that N.B. had tried. The
record also supports Warwick's contention that the IEP proposed on
April 13 was an interim one, which would be reviewed one month
later, after Warwick could study how N.B. responded to it. The
district court was warranted in finding that there was adequate
information, in context, to prepare an interim IEP. If no further
information developed, that was because N.B. was never presented to
or placed in the Warwick school system; he was instead enrolled in
Pathways.
The other argument stressed by the plaintiffs is that
Warwick never had an open mind about placements for N.B. They
point to a statement by a teacher, Ms. Brennan, that "[i]t was my
understanding that [N.B.] was coming to my classroom so we would
see him on April 13th, the day of the IEP meeting." The district
court found the plaintiffs' "pre-determined outcome argument" to be
an over-reading of the teacher's statement, which could be read to
mean only that she thought that N.B. was coming to her classroom to
be evaluated before the IEP meeting. This conclusion was not
clearly erroneous. Even if Ms. Brennan's statement is read as the
B.'s urge, it is hardly surprising that Warwick expected to see
Mrs. B.'s child in the classroom. Mrs. B. herself told the school
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system in her March 30 letter that her children would be "ready to
attend school as of Tuesday, April 11, 2000." In any event, Ms.
Brennan was just one member of a multi-member team, and the IEP was
not solely her effort.
C. Whether the Proposed IEP Provided FAPE
A major theme of the plaintiffs' oral argument was that
the IEP proposed by Warwick was not significantly different from a
pre-school program that N.B. had attended in Georgia (a "multi-
modality eclectic classroom," according to Mrs. B.), which had not
worked. That experience, they say, taught N.B.'s parents that he
needs constant one-on-one attention. As a result, they argue, only
Pathways comes close to meeting his needs. At the administrative
hearing, they provided expert evidence, in the form of an affidavit
from Dr. Mozingo, of Pathways, that Warwick's proposed IEP was
inadequate. They argue that the district court improperly rejected
this expert evidence, on "credibility" grounds, in favor of
evidence presented by Warwick's expert, despite reviewing only the
administrative record and not hearing the competing expert
witnesses for itself.
Warwick replies that its proposed IEP was different from
the failed program in Georgia. Furthermore, if the proposed IEP
did not work, Warwick says, it would have made adjustments, had it
been given the opportunity to do so.
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Neither the hearing officer nor the district court
addressed the contention that the proposed IEP was no different
than the failed program in Georgia. From the materials available
to us, it is far from clear that the programs were the same. The
Georgia class was twice as large as the class in Warwick's proposed
IEP. In addition, unlike Warwick's program, the Georgia class was
not specifically structured to address the needs of autistic
children. Moreover, there is no evidence that the teachers in the
failed Georgia program had the same extensive experience and
training in working with autistic children that the Warwick
teachers have.
The hearing officer's opinion devoted roughly one page to
the substantive issue of whether the IEP provided FAPE. She
rejected the testimony of Warwick's expert, Dr. Mesibov, on the
grounds that he had not met personally with N.B. and that he did
not observe one of Ms. Brennan's classes until several months after
the IEP was proposed. Neither of those grounds was a reasonable
basis on which to find the IEP inadequate. Dr. Mesibov, whose
credentials were considerable, testified based on his review of
N.B.'s prior educational history in Georgia, the progress reports
from Pathways (where N.B. had started school), the testimony of
others, and his observations of Ms. Brennan's class for autistic
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children.5 The district court reasonably relied on Dr. Mesibov's
testimony and on Warwick's well-trained teaching staff and track
record of success with autistic children.
As for the plaintiffs' expert, Dr. Mozingo, the district
court's opinion simply said that Warwick's expert, Dr. Mesibov, had
considerably more expertise in the field and so his views would be
afforded more weight. The record is clearly sufficient to support
that conclusion.
The district court also found that many elements of DTT,
the method that the B.'s advocated, would be available through the
Warwick program's use of the TEACCH techniques, including a
considerable amount of one-on-one instruction. There was no clear
error in the district court's finding that the IEP was adequate.
Once the determination is made that the IEP was adequate,
that ends the inquiry. We need not consider whether other programs
would be better. G.D. v. Westmoreland Sch. Dist., 930 F.2d 942,
948-49 (1st Cir. 1991).
5
The hearing officer also relied on Dr. Mesibov's
"admission" that he "would not recommend a program without meeting
both [the child and his or her parents]." But Dr. Mesibov
clarified later in his testimony that he meant that although he
personally would not recommend placement of a child without such
information, he felt that he had sufficient information here to
evaluate whether N.B.'s placement, which had already been
determined by others, was appropriate.
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III.
For these reasons, we affirm the judgment of the district
court.
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