School Union No. 37 v. MS. C.

United States Court of Appeals
For the First Circuit

No. 06-2261

SCHOOL UNION NO. 37,

Plaintiff, Appellee,

v.

MS. C.; DB,

Defendants, Appellants.

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

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Lipez, Circuit Judge,

John R. Gibson, Senior Circuit Judge*,

and Stahl, Senior Circuit Judge.

Amy M. Sneirson, with whom Richard L. O’Meara, Staci K.
Converse and Murray, Plumb & Murray were on brief, for appellants.
Brendan P. Rielly, with whom Jensen Baird Gardner & Henry
was on brief, for appellee.

February 26, 2008

*
Of the United States Court of Appeals for the Eighth
Circuit, sitting by designation.
 JOHN R. GIBSON, Circuit Judge. DB and his mother, Ms. C,

filed a request for a due process hearing with the Maine Department

of Education after DB turned nineteen and was no longer enrolled in

school. Although all of DB’s special education tuition had been

paid, he and his mother sought reimbursement for past room and

board and transportation expenses associated with DB’s education in

private schools outside of Maine. They obtained the relief they

were seeking from the Maine special education hearing officer.

School Union No. 37 then filed this action in the district court

under the Individuals with Disabilities Education Act, 20 U.S.C. §§

1400-1490 (“IDEA”), to challenge the administrative decision. The

district court entered judgment for the School Union. Ms. C and DB

appeal, arguing that their action was not barred by the equitable

defense of laches. We affirm.

I.

During the years in question, 1999 to 2004, Ms. C was a

resident of Dallas Plantation, Maine. Dallas Plantation does not

have schools of its own, and therefore its residents have options

for their children’s education. Under Maine’s “local choice”

option, Me. Rev. Stat. Ann. tit. 20-A §§ 5203.4, 5204.4, residents

of Dallas Plantation are permitted to send their children to the

school of their choice, and Dallas Plantation is responsible for

the tuition at a state-approved rate, Me. Rev. Stat. Ann. tit. 20-A

§§ 5804, 5805. Those who choose the closest public school send

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their elementary students to the Rangeley Lakes Regional School.

DB attended Rangeley Lakes from kindergarten to sixth grade.

Maine law permits Dallas Plantation to be part of a

school union, a body composed of school administrative units that

are joined for the purpose of providing joint administrative

services, including a joint superintendent. Me. Rev. Stat. Ann.

tit. 20-A § 1.31. School Union No. 37 is the school administrative

unit that includes Dallas Plantation.

DB was initially referred for special education services

by his first grade teacher at the Rangeley School in the fall of

1992. Pursuant to its obligations under the IDEA, the school

scheduled a Pupil Evaluation Team (“PET”) meeting to discuss DB’s

needs. Ms. C agreed to the meeting date but did not attend. The

meeting went forward with his classroom teacher and two special

education team members, and collectively they recommended that DB

receive academic and learning development testing along with

classroom observation. The school told Ms. C of the team’s

recommendations, but Ms. C did not agree with the assessment. She

did not allow DB to be tested. The team contacted her again four

months later to see if she was ready to proceed with their

recommended evaluation, and she responded that the issue was

“closed” on any testing for DB. Ms. C later changed her mind, and

in May of 1993, DB underwent a medical and psychological evaluation

and a behavior assessment. Three months later he had an

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educational assessment. DB ultimately was diagnosed as having

Attention-Deficit Hyperactivity Disorder and a learning disability.

The PET team met again at the beginning of the 1993-94

school year, a year in which DB repeated first grade, and he was

determined eligible to receive special education services as a

student with a learning disability. Ms. C attended this meeting.

The team agreed upon an Individual Education Plan (“IEP”) for DB.

Ms. C was to follow up on possible medical issues, the staff was to

write and implement a behavioral plan, and DB was to receive

individual help in the resource room for at least thirty minutes a

day. DB began taking medication shortly thereafter, and by the

next PET meeting in May of 1994, he was better able to attend to

schoolwork and follow rules.

DB’s second through fifth grade years had their ups and

downs. He continued to receive special education services at the

Rangeley School, which the school provided pursuant to regularly

conducted PET meetings. His mother withdrew him from the Rangeley

School in 1998, at the beginning of sixth grade, following an in-

school suspension DB received from an incident with a fellow

student. Ms. C, who had been an elementary school teacher and

Dallas Plantation School Board member, informed the school during

a PET meeting that she was going to home-school DB. Although the

school recognized that she had the right to do so, the special

educators indicated they were aware of the ongoing obligation to

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provide DB with a free appropriate public education. They sent Ms.

C a letter to that effect and invited her to contact them if she

wanted DB to resume his participation in the school’s special

education program. DB did not return to the Rangeley School or any

other school in the state of Maine after he withdrew in the fall of

1998.

While DB was a student at the Rangeley School, five IEPs

were prepared for him. Ms. C did not object to any of the IEPs,

the determinations that came out of PET meetings, or the level of

services the school provided to DB. During the year he was home-

schooled, the Rangeley School convened another annual PET meeting

and met to review DB’s home-school program and write an IEP. Ms.

C attended this meeting and informed those in attendance that DB

would be attending the Greenwood School in Vermont for the 1999-

2000 school year. As a resident of Dallas Plantation, she was

aware that she was free to choose the school DB would attend. No

school official or medical professional who evaluated DB opined

that he needed to attend a residential school, but Ms. C chose the

Greenwood School because she believed it would uniquely meet his

special education needs. Again, she did not challenge the latest

IEP that Rangeley had developed, and neither it nor any other IEP

created for DB from 1993 to 1999 determined that he required

residential placement in order to receive a free appropriate public

education.

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 Although DB never attended another school in Maine after

1998, he remained a student until 2004. He was at Greenwood from

the fall of 1999 until November of 2000. In January of 2001, Ms.

C enrolled DB in New Dominion, located in Dillwyn, Virginia. DB

attended and lived at New Dominion until August of 2002, when Ms.

C enrolled him in the Brush Ranch school in Terrero, New Mexico.

DB remained at Brush Ranch until the spring of 2004, just before

his eighteenth birthday. Dallas Plantation paid all of DB’s

tuition at each of the private schools he attended, which included

the standard tuition rate set by the state of Maine and any special

education services in excess of that rate that were authorized by

an IEP. In other words, Dallas Plantation paid both regular

tuition and special education tuition to all three out-of-state

private schools.

In 2005, after DB reached the age of 19 and was no longer

a student, he and his mother sought a due process hearing from the

Maine Department of Education on the issue of reimbursement for

room and board, transportation expenses, and other related expenses

from 1999 until 2004. The hearing officer awarded Ms. C and DB

reimbursement of $48,890 for room and board expenses during those

years and $3,241.33 for transportation expenses. The School Union

filed the complaint in this action in district court, asserting

seven alternative grounds to reverse the hearing officer’s

determination. The magistrate judge recommended that judgment be

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entered for the School Union on the affirmative defense of laches,

and the district court adopted the recommendation.1 Neither

addressed the other grounds for reversal.

II.

Reimbursement is an equitable remedy. Murphy v.

Timberlane Reg’l School Dist., 973 F.2d 13, 16 (1st Cir. 1992)

(“Murphy I”). Accordingly, it is subject to the equitable defense

of laches, which bars a claim for equitable relief “where a party’s

delay in bringing suit was 1) unreasonable, and 2) resulted in

prejudice to the opposing party.” K-Mart Corp. v. Oriental Plaza,

Inc., 875 F.2d 907, 911 (1st Cir. 1989). Unreasonableness of the

delay depends both on time elapsed and on whether Ms. C. and DB

acquiesced in the alleged wrong. See Jamesbury Corp. v. Worcester

Valve Co., 443 F.2d 205, 210 (1st Cir. 1971) (“Laches requires not

only a passage of time but also acquiescence in the alleged wrong

by the tardy plaintiff.”). The proponent of the doctrine must make

a clear showing of prejudice, Murphy v. Timberlane Reg’l Sch.

Dist., 22 F.3d 1186, 1189 (1st Cir. 1994) (“Murphy II”), which

generally arises in IDEA cases from the school being stripped of

the opportunity to make changes to a student’s program that might

1
The parties did not file dispositive motions, but the
district court entered judgment based on the administrative record
and on briefs on the merits filed by the parties. See 20 U.S.C. §
1415(i)(2)(B) (district court is to receive administrative record,
hear additional evidence at party’s request, and base its decision
on the preponderance of the evidence).

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have obviated the need for a private school and from having to

defend IEPs developed years earlier. E.g., L.K. v. Bd. of Educ.

for Transylvania County, 113 F. Supp. 2d 856, 861 (W.D.N.C. 2000);

Phillips v. Bd. of Educ. of the Hendrick Hudson School Dist., 949

F. Supp. 1108, 1113-14 (S.D.N.Y. 1997).

The School Union filed this action under 20 U.S.C. §

1415(i)(2)(B) to challenge the hearing officer’s decision. The

statute directs the district court to “grant such relief as the

court determines is appropriate,” using a preponderance of the

evidence standard. Id. When the district court reviews the

administrative ruling, it exercises its discretion, informed by the

record and by the expertise of the administrative agency and the

school officials, as to how much deference to afford the

administrative proceedings. Lenn v. Portland Sch. Comm., 998 F.2d

1083, 1087 (1st Cir. 1993); Hampton Sch. Dist. v. Dobrowolski, 976

F.2d 48, 52 (1st Cir. 1992). “In the end, the judicial function at

the trial-court level is one of involved oversight, and in the

course of that oversight, the persuasiveness of a particular

administrative finding, or the lack thereof, is likely to tell the

tale.” Lenn, 998 F.2d at 1087. The School Union had the burden of

proof in the district court as the party challenging the hearing

officer’s decision. Hampton, 976 F.2d at 54. This court reviews

the district court’s findings of fact and conclusions drawn

therefrom under the clear error standard and its rulings of law de

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novo. Lenn, 998 F.2d at 1087. We review the district court’s

application of the doctrine of laches for abuse of discretion.

Murphy I at 16.

The district court conducted a thorough review of the

record and correctly cited the legal support for its conclusions.

Crediting the administrative judge’s findings of fact, the district

court concluded that the administrative decision lacked

persuasiveness because its reasoning was facile, it erroneously

failed to find that Ms. C’s and DB’s delay in seeking reimbursement

was unreasonable based on the facts, and it misconstrued the legal

test for prejudice. We, too, have reviewed the administrative

record and we conclude that the district court committed no abuse

of discretion in reversing the administrative finding.

A.

The district court considered the issue of reasonableness

by looking at both the passage of time and Ms. C’s conduct

indicative of acquiescence. Ms. C and DB waited until 2005 to

assert this reimbursement claim for expenses dating back to 1999.

Although Ms. C had raised the issue in a due process hearing she

initiated in 2003,2 she took no steps to bring it to a head when

2
Dallas Plantation denied responsibility for tuition from
2002-04 because it believed that Ms. C was no longer a resident.
Ms. C obtained an administrative hearing to challenge that
decision, and the hearing officer found that Ms. C remained a
resident of Dallas Plantation and ordered it to resume tuition
payments for DB. Ms. C also asked to be compensated for room and
board and transportation in the 2003 hearing.

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the administrative order made no mention of it. In the meantime,

Dallas Plantation continued paying DB’s tuition-related expenses.

Based on the record, the district court disagreed with the hearing

officer’s conclusion that Ms. C’s and DB’s delay in fully pressing

their claim was not unreasonable.

Ms. C and DB argue that this delay was not unreasonable

because the School Union could have brought a due process action at

any time since 1999 to “clarify its obligations to DB and his

mother, but did not.” We see no merit to this argument, which

seeks to put the burden on the School Union to anticipate a

parent’s request that may never be forthcoming. Our review leads

us to conclude that the district court accurately analyzed the

question of delay.

Ms. C asserts that she was not sitting on her rights

because she contacted the School Union as soon as she learned that

she had a claim. According to her, that was in June of 2004.

However, her attorney had raised the issue nine months earlier in

a letter and preliminary statement he filed before a due process

hearing Ms. C requested in October, 2003. For some reason, her

attorney chose to remain silent on the issue during the 2003

hearing. The hearing officer’s decision in the 2003 proceeding

makes no mention of it, and Ms. C did not appeal the decision.

Meanwhile, Dallas Plantation continued paying DB’s out-of-state

tuition as it had from the beginning.

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 The record reveals that Ms. C was urged to seek

reimbursement for DB’s non-tuition related expenses even earlier.

At the administrative hearing in this case, a witness for Ms. C and

DB testified that she told Ms. C in late 1999 or early 2000 that

she could ask Dallas Plantation to pay for DB’s residential

expenses. Anne Bebko, the local education agency coordinator and

parent advocate for the Greenwood School, which DB attended from

the fall of 1999 until the following November, testified that she

told Ms. C that she could request an IEP meeting to ask Dallas

Plantation to pay DB’s residential expenses as well as his tuition.

Bebko related that Ms. C did not want to “rock the boat;” she

believed community resentment existed over the high tuition rates

for DB’s out-of-state education and she did not want to risk losing

that benefit by asking for more money.

Bebko’s testimony not only demonstrates that Ms. C acquiesced

in paying her son’s non-tuition expenses, but also refutes her

claim that she was ignorant of her rights. In addition, her

acquiescence relates to the time element: not only did Ms. C allow

five years to pass after she enrolled DB in out-of-state schools to

make this reimbursement request for his non-tuition expenses, but

she also waited until DB was no longer a student. As the district

court observed, citing Anne Bebko’s testimony: “An inference might

be drawn that [Ms. C and DB] did not ‘rock the boat’ at that

juncture in the hopes of assuring that the School District at least

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continued to pay the tuition related expenses through the

conclusion of DB’s secondary education.”

Ms. C and DB take the position that the onus was on the

School Union to determine whether it was responsible for paying

expenses above and beyond what it was spending on DB’s special

education tuition at the three out-of-state private schools.

Shifting the burden thus allows Ms. C and DB to deny responsibility

for any delay, let alone an unreasonable one. The district court

did not abuse its discretion by concluding that Ms. C and DB

unreasonably delayed their reimbursement request. See

Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 158 (3d Cir. 1994)

(parents’ two-year wait after placing child in a private school to

initiate review proceedings was unreasonable, but even one year

would be unreasonable “without mitigating excuse”).

B.

The School Union cannot successfully assert its laches

defense unless it proves that the delay caused it to suffer

prejudice. Murphy I, 973 F.2d at 17. In its review, the district

court credited the hearing officer’s statement of the facts and

found the hearing officer’s conclusion of no prejudice

“indefensible.” The district court determined that the School

Union was prejudiced by Ms. C’s and DB’s passivity in pressing

their entitlement to reimbursement because the School Union was

never given a reason to proffer a less expensive acceptable

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alternative to the schools Ms. C chose during the time DB remained

a student. Ms. C and DB object to the district court’s conclusion

and advocate in favor of the hearing officer’s opinion that the

School Union had an obligation to discuss the least restrictive

environment and to consider whether DB needed residential

placement. They allege that the School Union “chose to mislead Ms.

C in the hope that she would remain ignorant of her rights and

never challenge them.” They also argue that school administrators

knew that DB was not getting the free appropriate public education

to which he was entitled expressly because Ms. C had to pay his

room, board, and transportation. No evidence exists to support

their argument.

As the district court pointed out, the hearing officer

erroneously construed Murphy I to hold that only two kinds of

prejudice are relevant to laches: witness memory and witness

availability. Because the School Union had not complained of

either of these problems, she concluded that no prejudice existed.

Our case law has not defined any particular category of prejudice

that must be shown by the party asserting a laches defense. In

this case, the prejudice arose from the fact that the School Union

was under no affirmative obligation to clarify whether DB’s

placement in the various residential private schools was an

exercise of parental choice pursuant to Maine statute or was

required as the least restrictive environment in which DB could

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receive a free appropriate public education pursuant to the IDEA.

As the district court wrote:

The record demonstrates a long, protracted,
and well documented history of interaction
between the educational professionals and Ms.
C, with the school taking an active part in
addressing DB’s special education needs. The
record demonstrates that Ms. C first indicated
an interest in home schooling and, then, in a
residential placement and that the school,
while advising Ms. C that they were
considering their obligation as limited to a
school-choice-esque tuition reimbursement,
acceded to Ms. C’s decisions in terms of
placing DB in alternative environments. . . .
Ms. C does suggest that she voiced
disagreements at PET meetings which were not
reflected in the written documentation but she
nowhere represents, let alone avers, that
these disagreements had anything to do with
the need to place DB in a residential – as
opposed to a commutable – educational setting.

In her brief, Ms. C writes that she “specifically

testified [at the hearing] that she did not receive written notices

of procedural safeguards.” The citation she offers to the record

is to testimony that she did not receive any additional parental

rights notices from Dallas Plantation or the Rangeley School after

1998. That does not take into account other evidence, however.

The record contains documents indicating that she was provided

written notice of her rights at least twenty-five times between

1992 and 1999. One of these notices accompanied a September 28,

1998 letter from the Rangeley School’s special education

coordinator and teacher to Ms. C after she withdrew DB from school

to home-school him. They wrote:

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 We recognize and accept our obligation to
offer a Free and Appropriate Public Education
to [DB] if you so desire. We also need to
annually review [DB]’s special education
needs, develop an Individualized Education
Plan for your consideration and advise you of
the procedural safeguards. If you would like
[DB] to participate in our special education
program at any time, please contact us and we
will be happy to be of assistance.

At the top of the letter is a hand-written notation that it was

“sent 9/29/98 w/ long form of rights.” Had Ms. C responded to this

invitation earlier and pressed the point of reimbursement, the

School Union would have been able to clarify its liability for

residential services by conducting additional assessments of DB,

convening additional PETs, and drafting an IEP that directly

addressed DB’s need – or lack thereof3 – for a residential

3
Ms. C admitted that she had not received any expert
recommendation that DB attend a residential school.

Q: At this time here in May 1999, as you’re discussing
Greenwood and researching these alternatives, did you
obtain any evaluation of [DB] that said he would need a
residential placement?
A: It wasn’t necessary for me to.
Q: So you didn’t obtain any determination by a medical
official or a school official that [DB] needed
residential placement?
A: It wasn’t – as a resident of Dallas [Plantation], it
wasn’t something that I had to have.
Q: Okay. Because you placed him at Greenwood pursuant to
your local choice option?
A: Yeah, and his need for special education.
...
Q: Just to make sure we got that clear, your answer to my
question was: No, you did not obtain that determination
[that DB needed residential placement]?
A: I did not formally obtain that determination.

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placement. Because Ms. C waited until DB had finished his

education, this opportunity for the School Union to clarify both

its role and DB’s special education needs under federal law was

missed. The School Union was prejudiced because the missed

opportunities arose as a result of Ms. C’s and DB’s delay.

The School Union was under no affirmative obligation to

bring to a head the issue of whether or not it should be

responsible for non-tuition expenses. The district court properly

carried out its role in reviewing the administrative decision at

hand. “The role of the district court is to render bounded,

independent decisions – bounded by the administrative record and

additional evidence, and independent by virtue of being based on a

preponderance of the evidence before the court.” Hampton Sch.

Dist. v. Dobrowolski, 976 F.2d 48, 52 (1st Cir. 1992) (quoting

Town of Burlington v. Dep’t of Educ., 736 F.2d 772, 791 (1st Cir.

1984), aff’d, 471 U.S. 359 (1985)). In so doing, it committed no

abuse of discretion.

AFFIRMED.

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