C.D. by and Through M.D. v. Natick Public School District , 924 F.3d 621 ( 2019 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 18-1794
    C.D., by and through her Parents and Next Friends, M.D. and
    P.D.; M.D.; P.D.,
    Plaintiffs, Appellants,
    v.
    NATICK PUBLIC SCHOOL DISTRICT; BUREAU OF SPECIAL EDUCATION
    APPEALS,
    Defendants, Appellees.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. F. Dennis Saylor, IV, U.S. District Judge]
    Before
    Torruella, Lynch, and Kayatta,
    Circuit Judges.
    Benjamin J. Wish, with whom Todd & Weld, LLP, Laurie R.
    Martucci, and Martucci Law Associates were on brief, for
    appellants.
    Selene Almazan-Altobelli and Ellen Saideman on brief for
    Council of Parent Attorneys and Advocates, Inc., amicus curiae.
    Ira A. Burnim, Lewis Bossing, Elizabeth B. McCallum, Paul E.
    Poirot, William T. DeVinney, and Baker Hostetler, LLP on brief for
    the Judge David L. Bazelon Center for Mental Health Law,
    Association of University Centers on Disabilities, Disability Law
    Center, National Center for Learning Disabilities, National Center
    for Youth Law, National Disability Rights Network, and National
    Down Syndrome Congress, amici curiae.
    Felicia S. Vasudevan, with whom Murphy, Hesse, Toomey &
    Lehane, LLP was on brief, for Natick Public School District.
    Anna Rachel Dray-Siegel, Assistant Attorney General, with
    whom Maura Healey, Attorney General of Massachusetts, was on brief,
    for Bureau of Special Education Appeals.
    Michael J. Long and Long & DiPietro, LLP on brief for the
    Massachusetts Association of School Superintendents, amicus
    curiae.
    Francisco M. Negrón, Jr., Cristine M.D. Goldman, Colleen
    Shea, Colby Brunt, and Stoneman, Chandler & Miller, LLP on brief
    for National School Boards Association and Massachusetts
    Association of School Committees, amici curiae.
    May 22, 2019
    LYNCH, Circuit Judge.                The Individuals with Disabilities
    Education       Act       (IDEA)    requires       that        students     with    certain
    disabilities be provided a "[f]ree appropriate public education"
    (FAPE) in the "[l]east restrictive environment" (LRE) appropriate
    for each student.            20 U.S.C. § 1412(a)(1), (5).                  Under the IDEA
    and   Massachusetts          law,    the    individualized             education   programs
    (IEPs)     of        certain       disabled       students        must      also    contain
    postsecondary          transition        goals     and       services     based    on   age-
    appropriate          assessments.         
    Id. § 1414(d)(1)(A)(i)(VIII);
                 Mass.
    Gen. Laws ch. 71B, § 2.
    Appellants             are     C.D.,         a     resident      of     Natick,
    Massachusetts, who qualified as a child with a disability under
    the IDEA, and her parents.                 They challenge this circuit's prior
    interpretations of these IDEA requirements as incomplete or as
    inconsistent with the IDEA and current Supreme Court case law.
    The parents seek reimbursement for at least three years of C.D.'s
    education       in    a   specialized      private           school.      Rejecting     these
    challenges, we affirm the district court, which upheld a decision
    of the Massachusetts Bureau of Special Education Appeals (BSEA)
    ruling that the Natick Public School District (Natick) had complied
    with the FAPE, LRE, and transition requirements in proposed IEPs
    for C.D.    See C.D. v. Natick Pub. Sch. Dist. (C.D. II), No. 15-
    13617-FDS, 
    2018 WL 3510291
    , at *1 (D. Mass. July 20, 2018); C.D.
    - 3 -
    v. Natick Pub. Sch. Dist. (C.D. I), No. 15-13617-FDS, 
    2017 WL 3122654
    , at *1 (D. Mass. July 21, 2017).
    I.
    The IDEA offers states federal funds for the education
    of   children    with   disabilities        in    exchange     for   the    states'
    commitments to comply with the IDEA's directives, including its
    FAPE and LRE requirements.          See Arlington Cent. Sch. Dist. Bd. of
    Educ. v. Murphy, 
    548 U.S. 291
    , 295 (2006).
    A    FAPE    "comprises     'special      education       and    related
    services' -- both 'instruction' tailored to meet a child's 'unique
    needs' and sufficient 'supportive services' to permit the child to
    benefit from that instruction."          Fry v. Napoleon Cmty. Sch., 
    137 S. Ct. 743
    , 748–49 (2017) (quoting 20 U.S.C. § 1401(9), (26),
    (29)).   "The primary vehicle for delivery of a FAPE is an IEP."
    D.B. ex rel. Elizabeth B. v. Esposito, 
    675 F.3d 26
    , 34 (1st Cir.
    2012) (internal quotation marks omitted).             IEPs are "comprehensive
    plan[s]" that are developed by              the    child's "IEP Team (which
    includes teachers, school officials, and the child's parents)" and
    that   "must    be   drafted   in   compliance      with   a   detailed      set   of
    procedures."     Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.
    Ct. 988, 994 (2017) (internal quotation marks omitted).                    Under the
    Supreme Court's recent decision in Endrew F. v. Douglas County
    School District RE-1, 
    137 S. Ct. 988
    (2017), the services offered
    in an IEP amount to a FAPE if they are "reasonably calculated to
    - 4 -
    enable a child to make progress appropriate in light of the child's
    circumstances."    
    Id. at 1001.
    The IDEA also requires states receiving federal funds to
    educate disabled children in the "[l]east restrictive environment"
    appropriate for each child.     20 U.S.C. § 1412(a)(5).      The statute
    mandates at § 1412(a)(5)(A):
    To the maximum extent appropriate, children
    with disabilities . . . are educated with
    children who are not disabled, and special
    classes, separate schooling, or other removal
    of children with disabilities from the regular
    educational environment occurs only when the
    nature or severity of the disability of a
    child is such that education in regular
    classes with the use of supplementary aids and
    services cannot be achieved satisfactorily.
    
    Id. The Supreme
    Court has characterized this LRE mandate as
    embodying    a   "preference"   for   "mainstreaming"     students   with
    disabilities in "the regular classrooms of a public school system."
    Bd. of Educ. v. Rowley, 
    458 U.S. 176
    , 202-03 (1982); see also
    Endrew 
    F., 137 S. Ct. at 999
    ("[T]he IDEA requires that children
    with   disabilities   receive   education   in   the   regular   classroom
    'whenever possible'" (quoting 
    Rowley, 458 U.S. at 202
    )).          But the
    IDEA's preference for mainstreaming "is not absolute."            T.M. ex
    rel. A.M. v. Cornwall Cent. Sch. Dist., 
    752 F.3d 145
    , 162 (2d Cir.
    2014); see also 
    Rowley, 458 U.S. at 197
    n.21 ("The Act's use of
    the word 'appropriate' . . . reflect[s] Congress' recognition that
    some settings simply are not suitable environments for . . . some
    - 5 -
    handicapped children.").             Instead, as we explained in Roland M.
    v. Concord School Committee, 
    910 F.2d 983
    (1st Cir. 1990), "the
    desirability of mainstreaming must be weighed in concert with the
    Act's mandate for educational improvement."1                    
    Id. at 993.
    The    final     IDEA    requirement        at    issue   here     is   the
    instruction at § 1414(d)(1)(A)(i)(VIII) that certain students'
    IEPs "include[] . . . appropriate measurable postsecondary goals
    based     upon    age    appropriate     transition      assessments       related    to
    training,        education,      employment,     and . . . independent           living
    skills" along with "the transition services (including courses of
    study) needed to assist the child in reaching those goals."                           20
    U.S.C. § 1414(d)(1)(A)(i)(VIII)(aa)-(bb).                     Massachusetts has made
    these transition requirements applicable starting at age fourteen.
    See     Mass.     Gen.    Laws     ch.   71B,     § 2;        see   also   20    U.S.C.
    § 1414(d)(1)(A)(i)(VIII)             (making     this    requirement       applicable
    "beginning not later than the first IEP to be in effect when the
    child is 16").          Because C.D. was fourteen or older when the IEPs
    at issue were proposed, these requirements applied.
    1   Roland M. interpreted the IDEA's predecessor statute,
    
    see 910 F.2d at 987
    , but the text of the provision at issue has
    not changed, compare Education for All Handicapped Children Act of
    1975, Pub. L. No. 94-142 § 612(5), 89 Stat. 733, 781 (1975), with
    20 U.S.C. § 1412(a)(5)(A).
    - 6 -
    II.
    C.D.   has     borderline     intellectual   functioning   and
    significant deficits in language ability.          She attended public
    school in Natick through fifth grade.          For middle school, she
    attended McAuliffe Regional Charter Public School in Framingham,
    Massachusetts, where she took all of her classes except math in a
    regular classroom setting.      To assist C.D., two private tutors
    hired by C.D.'s parents attended C.D.'s middle school classes with
    her.
    The summer before C.D. entered high school, her parents
    worked with Natick to develop an IEP for C.D.'s ninth grade year
    at Natick High School.    C.D.'s parents wanted C.D. to continue her
    education in a regular classroom setting, with the help of the
    same private tutors.     School officials explained that only Natick
    employees were allowed to teach or tutor students in Natick's
    classrooms.
    Natick was concerned that larger class sizes and more
    advanced content in high school would make it difficult for C.D.
    to access the general education curriculum.       It considered placing
    C.D. in replacement classes in which a modified general education
    curriculum is taught by a special education teacher.        Ultimately,
    Natick, in its proposed IEP, chose a third option.
    The school presented C.D.'s parents with a proposed
    ninth grade IEP, for the 2012-2013 school year, that placed C.D.
    - 7 -
    in regular classrooms for her elective courses but in a setting
    called the ACCESS Program for her academic courses.          The ACCESS
    Program is a self-contained special education program located at
    Natick High School and designed for students who, like C.D., have
    cognitive    and   communication   deficits.        ACCESS   offers   a
    significantly modified curriculum, and its students typically earn
    certificates rather than high school diplomas.
    C.D.'s parents rejected the IEP, saying that the ACCESS
    Program was an overly "restricted environment" and that C.D.'s
    placement there would "hinder" her academic and social growth.
    They enrolled C.D. at Learning Prep School, a private school that
    specializes in educating students with disabilities.
    The summer before C.D. was to enter tenth grade, Natick
    presented to C.D.'s parents an IEP for the 2013-2014 school year
    that again placed C.D. in the ACCESS Program for her academic
    classes.    C.D.'s parents again rejected the IEP, giving the same
    reasons, and enrolled C.D. at Learning Prep.
    Before the next school year, the IEP Team reconvened,
    this time with the benefit of a fresh set of assessments of C.D.
    Based on these assessments and on reports of C.D.'s progress at
    Learning Prep, Natick proposed a new IEP for the 2014-2015 school
    year that placed C.D. in a mix of ACCESS classes, replacement
    classes, and general education classes.        C.D.'s parents rejected
    this IEP for two reasons.    As they saw it, the proposed schedule
    - 8 -
    left       inadequate   time    for   speech   and   language   services.     In
    addition, Natick had not yet conducted a formal postsecondary
    transition assessment.           As to C.D.'s postsecondary transition, the
    2012-2013, 2013-2014, and initial 2014-2015 IEPs had stated the
    parents' goal that C.D. graduate from high school and had provided
    transition and vocational services from the school's learning
    center.
    Natick then performed a formal transition assessment and
    presented a revised 2014-2015 IEP.              This final IEP proposed the
    same mix of classes, but extended C.D.'s school day to allow for
    speech and language therapy as well as career preparation services.
    C.D.'s parents rejected this IEP, and C.D. attended Learning Prep
    for the 2014-2015 school year.
    In 2014, C.D.'s parents filed a complaint with the BSEA
    seeking reimbursement for C.D.'s tuition at Learning Prep.                    To
    qualify for reimbursement, the parents had to show that Natick's
    IEPs for 2012-2013, 2013-2014, and 2014-2015 "had not made a free
    appropriate       public       education   available."   2      See   20   U.S.C.
    § 1412(a)(10)(C)(ii).           After a hearing in May 2015, a BSEA Hearing
    2  The transition planning and transition assessment
    requirements are procedural. Only certain procedural flaws, such
    as those that result in the denial of a FAPE or "a deprivation of
    educational benefits," are actionable under the IDEA. 20 U.S.C.
    § 1415(f)(3)(E)(ii); see also, e.g., R.E. v. N.Y.C. Dep't of Educ.,
    
    694 F.3d 167
    , 195 (2d Cir. 2012) (applying this harmless error
    principle to a claimed violation of the transition requirements).
    - 9 -
    Officer   denied    the   parents'    request       for   reimbursement.     The
    Hearing   Officer     concluded      that     the    IEPs    were   "reasonably
    calculated   to    provide   [C.D.]    with    a    free    appropriate    public
    education in the least restrictive environment."               And the Hearing
    Officer found that the facts and testimony presented did not
    support the parents' arguments that the transition assessments and
    plans were inadequate.3
    C.D.'s parents sought review of the BSEA's decision in
    federal district court.       The district court denied the parents'
    motion for summary judgment and their supplemental motion for
    summary judgment.     See C.D. I, 
    2017 WL 3122654
    , at *26; C.D. II,
    
    2018 WL 3510291
    , at *4.       Giving "due weight" to the decision of
    the BSEA, C.D. I, 
    2017 WL 3122654
    , at *15, the district court made
    three relevant rulings.      First, because Endrew F. had been decided
    while the parents' motion for summary judgment was pending, the
    district court verified that the Hearing Officer had applied a
    FAPE standard consistent with Endrew F. 4                  
    Id. at *16
    ("[T]he
    standard articulated in Endrew F. is not materially different from
    the standard set forth in" the First Circuit's prior cases and
    "applied by the hearing officer.").             Second, the district court
    3    The Hearing Officer also rejected other arguments not
    presented on appeal.
    4    The district court first remanded in part to the BSEA
    for the Hearing Officer to confirm that she had applied a standard
    consistent with Endrew F.
    - 10 -
    found it "unclear" whether the BSEA's decision had followed the
    First Circuit's prior cases on the LRE mandate.                       
    Id. at *19.
        And
    so the district court remanded to the BSEA to determine whether
    the 2012-2013 and 2013-2014 IEPs, which proposed to place C.D. in
    the ACCESS Program for her academic courses, had provided a FAPE
    in the LRE.         After the BSEA responded with a clarification order,
    the district court concluded that "based on the preponderance of
    the evidence, the BSEA hearing officer appropriately found that
    the district balanced the benefits of mainstreaming against the
    restrictions            associated   with      the    [ACCESS]   classes,      and   that
    the . . . IEPs were reasonably calculated to provide a FAPE in the
    least       restrictive        environment      possible."       C.D.    II,   
    2018 WL 3510291
    , at *4.            Third, the district court agreed with the BSEA
    that       the   2012-2013,      2013-2014,      and    the   final   2014-2015 5 IEPs
    complied         with    the   IDEA's    transition      planning      and   assessment
    requirements.            C.D. I, 
    2017 WL 3122654
    , at *19, *21.
    III.
    C.D.'s parents now argue that the district court applied
    the wrong legal standards.               They say first that Endrew F. defined
    "progress          appropriate"         as     "appropriately         ambitious"      and
    "challenging" so that the district court was required to ask, in
    5  The district court held that any challenges to the
    initial 2014-2015 IEP were mooted by that IEP's replacement with
    the final 2014-2015 IEP. C.D. I, 
    2017 WL 3122654
    , at *21.
    - 11 -
    evaluating whether a FAPE was offered, whether the IEPs contained
    sufficiently "challenging objectives."         Endrew 
    F., 137 S. Ct. at 1000
    .   Next, the parents urge us to adopt, and contend that the
    district court should have applied, a multi-part test from Daniel
    R.R. v. State Board of Education, 
    874 F.2d 1036
    (5th Cir. 1989),
    to evaluate whether the IEPs placed C.D. in an overly restrictive
    environment.     Finally, C.D.'s parents argue that the district
    court ignored the plain language of the IDEA's transition planning
    and assessment requirements.
    Our review of the district court on these legal issues
    is de novo.    See Johnson v. Bos. Pub. Sch., 
    906 F.3d 182
    , 191 (1st
    Cir. 2018).    We hold that the district court properly applied this
    circuit's standards and that those standards are consistent with
    Endrew F. and with the IDEA.     The parents also raise alternative
    arguments that the district court erred in applying law to fact,
    and we review these fact-dominated rulings deferentially.              
    Id. (quoting Doe
    v. Cape Elizabeth Sch. Dist., 
    832 F.3d 69
    , 76 (1st
    Cir. 2016)).    Finding no errors, we affirm.
    A.
    Until      Endrew     F.,      the     Supreme      Court    had
    "declined . . . to    endorse   any    one   standard   for   determining"
    whether the services offered in a student's IEP amounted to a FAPE.
    Endrew 
    F., 137 S. Ct. at 993
    .         This circuit, along with several
    others, said that to offer a FAPE, an IEP must be "individually
    - 12 -
    designed"   and   "reasonably   calculated   to    confer    a   meaningful
    educational benefit."     
    D.B., 675 F.3d at 34-35
    (citing D.S. v.
    Bayonne Bd. of Educ., 
    602 F.3d 553
    , 557 (3d Cir. 2010), then citing
    D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 
    430 F.3d 595
    , 598
    (2d Cir. 2005), and then citing Deal v. Hamilton Cty. Bd. of Educ.,
    
    392 F.3d 840
    , 862 (6th Cir. 2004)).      After Endrew F., this court
    confirmed, in Johnson v. Boston Public Schools, 
    906 F.3d 182
    (1st
    Cir. 2018), that this "meaningful educational benefit" standard
    for evaluating whether an IEP offers a FAPE "comports" with the
    standard "dictated by Endrew F."6     
    Id. at 194-95.
    C.D.'s parents say that our Johnson decision restricted
    its view to Endrew F.'s language about "progress appropriate in
    light of the child's circumstances," Endrew 
    F., 137 S. Ct. at 1001
    ,
    and that we have yet to examine language in Endrew F. about
    "ambitious" and "challenging" goals, 
    id. at 1000.
              On the parents'
    reading, after Endrew F., courts must ask not only whether an IEP
    offers meaningful    educational progress,        but also, separately,
    whether the IEP's objectives are ambitious and challenging.
    6    Other circuits that use a "meaningful benefit" standard
    have held the same. See L.H. v. Hamilton Cty. Dep't of Educ., 
    900 F.3d 779
    , 792 n.5 (6th Cir. 2018); Mr. P. v. W. Hartford Bd. of
    Educ., 
    885 F.3d 735
    , 757 (2d Cir.), cert. denied sub nom. Mr. P.
    v. W. Hartford Bd. of Educ., 
    139 S. Ct. 322
    (2018); K.D. ex rel.
    Dunn v. Downingtown Area Sch. Dist., 
    904 F.3d 248
    , 254 (3d Cir.
    2018).
    - 13 -
    The parents misread Endrew F., which did not construe
    the FAPE standard as two independent tests.                  That decision's core
    holding was that the "merely more than de minimis" educational
    benefit standard that had been used by the appellate court to
    evaluate Endrew's IEPs was insufficiently "demanding."                        
    Id. at 1000-01;
    see also 
    id. at 997
    (quoting Endrew F. ex rel. Joseph F.
    v. Douglas Cty. Sch. Dist. RE-1, 
    798 F.3d 1329
    , 1338 (10th Cir.
    2015)).     Endrew F. defined a FAPE -- "an educational program
    reasonably      calculated    to   enable       a    child     to    make    progress
    appropriate     in   light    of   the   child's      circumstances,"         
    id. at 1001
    -- in contrast to this rejected, "de minimis" standard.                        It
    was in this context that the Supreme Court employed the terms
    "ambitious" and "challenging."           The Court explained that, for many
    children     with    disabilities        integrated          into     "the    regular
    classroom," an "appropriately ambitious" goal is "advancement from
    grade to grade."        
    Id. at 1000.
           And the Court stated that, for
    those    "not   fully    integrated      in    the   regular        classroom,"     the
    particular "goals may differ, but every child should have the
    chance to meet challenging objectives."               
    Id. In short,
    Endrew F.
    used terms like "demanding," "challenging," and "ambitious" to
    define     "progress      appropriate         in     light     of      the    child's
    circumstances," not to announce a separate dimension of the FAPE
    requirement.      
    Id. at 1000-01;
    cf. R.F. v. Cecil Cty. Pub. Sch.,
    - 14 -
    
    919 F.3d 237
    , 252 (4th Cir. 2019) (defining adequate progress and
    "challenging objectives" under Endrew F.).
    Under     both     Endrew     F.    and    our   precedent,      a     court
    evaluating whether an IEP offers a FAPE must determine whether the
    IEP was reasonably calculated to confer a meaningful educational
    benefit in light of the child's circumstances.                          See 
    Johnson, 906 F.3d at 195
    ; cf. K.D. ex rel. Dunn v. Downingtown Area Sch. Dist.,
    
    904 F.3d 248
    , 256 (3d Cir. 2018) (equating meaningful progress and
    challenging           objectives).            Depending      on    context,     determining
    whether          an   IEP    is    reasonably      calculated      to   offer    meaningful
    progress may or may not require a sub-inquiry into how challenging
    the plan is.           Here, the district court did just what Endrew F. and
    Johnson require in affirming the BSEA's conclusion that the 2012-
    2013 and 2013-2014 IEPs offered a FAPE.7                           See C.D. I, 
    2017 WL 3122654
    , at *16 (describing the standard applied by the BSEA);
    C.D.       II,    
    2018 WL 3510291
    ,    at     *4   (affirming    the     BSEA's   FAPE
    conclusion).
    The district court also did not err in applying that
    standard to the facts in the record.                        The parents maintain that
    C.D. would not have made appropriate progress in the ACCESS
    Program, but the district court reasonably concluded that the
    7  C.D.'s parents argue that, in evaluating the 2012-2013
    and 2013-2014 IEPs, the BSEA misapplied the First Circuit's FAPE
    standard by omitting the word "meaningful" from its analysis. But
    the BSEA did not overlook that operative word.
    - 15 -
    record supported the BSEA's finding that C.D., given her diagnosed
    intellectual disability and serious language deficits, could be
    expected to make meaningful progress in the ACCESS program and
    general education electives.   See C.D. II, 
    2018 WL 3510291
    , at *3-
    4.
    B.
    C.D.'s parents argue next that the 2012-2013 and 2013-
    2014 IEPs violated the LRE mandate by proposing to place C.D. in
    the ACCESS Program, which the parents view as overly restrictive.
    They urge us to adopt, and argue that the district court should
    have applied, the multi-step test from the Fifth Circuit's decision
    in Daniel R.R. to evaluate this claim.8   
    See 874 F.2d at 1048-50
    .
    We reject both arguments.   Instead, we affirm the district court,
    which properly relied on our decision in Roland M. in ruling that
    the IEPs did not violate the LRE mandate.
    Courts that use the Daniel R.R. methodology evaluate
    compliance with the LRE mandate in two steps, asking first "whether
    education in the regular classroom, with the use of supplementary
    8    Natick and the BSEA argue that C.D.'s parents waived
    their argument based on Daniel R.R. by neglecting to "set forth
    [its] multifactor test" before the district court. But we deem
    sufficient the parents' reliance on Daniel R.R. in the district
    court; the parents' motions cited to and the district court quoted
    from Daniel R.R. See C.D. II, 
    2018 WL 3510291
    , at *3; see also
    Rivera-Gomez v. de Castro, 
    843 F.2d 631
    , 635 (1st Cir. 1988)
    (finding no waiver where " the district court was not left . . . to
    ferret out an evanescent needle from an outsized paper haystack").
    - 16 -
    aids and services, can be achieved satisfactorily," and, if the
    child cannot be educated in the regular classroom, asking second
    "whether the school has mainstreamed the child to the maximum
    extent   appropriate."     
    Id. at 1048.
        In    answering   the    first
    question, Daniel R.R. instructs courts to consider whether the
    district has made reasonable efforts to accommodate the child in
    a regular classroom; the benefits, both academic and non-academic,
    available to the child in a regular class compared to the benefits,
    both academic and non-academic, available in a more restricted
    class; and the effects of inclusion on other children in the
    regular classroom.    
    Id. at 1048-49;
    see also Oberti by Oberti v.
    Bd. of Educ., 
    995 F.2d 1204
    , 1217-18 (3d Cir. 1993).
    The   parents   frame      their    claim    as   presenting     the
    following question, which they say is one of first impression in
    this circuit:    When does a school's decision to educate a child
    with disabilities in a setting other than the regular classroom
    violate the IDEA's LRE mandate?             Several other circuits, the
    parents observe,     have used     the Daniel R.R.        test to evaluate
    parents' claims that their children should be mainstreamed.9               See
    9    The Fourth and Eighth Circuits have applied the Sixth
    Circuit's test from Roncker v. Walter, 
    700 F.2d 1058
    (6th Cir.
    1983), which asks "whether the services which make . . . [an
    alternative] placement superior could be feasibly provided in a
    non-segregated setting." 
    Id. at 1063;
    see also DeVries v. Fairfax
    Cty. Sch. Bd., 
    882 F.2d 876
    , 878-79 (4th Cir. 1989); A.W. v. Nw.
    R–1 Sch. Dist., 
    813 F.2d 158
    , 163 (8th Cir. 1987).
    - 17 -
    
    Oberti, 995 F.2d at 1216-17
    ; 
    T.M., 752 F.3d at 161-62
    ;       L.B. ex
    rel. K.B. v. Nebo Sch. Dist., 
    379 F.3d 966
    , 976-77 (10th Cir.
    2004); Sacramento City Unified Sch. Dist. v. Rachel H. ex rel.
    Holland, 
    14 F.3d 1398
    , 1400-01 (9th Cir. 1994).         The parents'
    premise is incorrect.     There is no ground for distinguishing our
    prior cases, like Roland M., involving parents who sought a more
    restrictive placement than the one proposed in the IEP.10      Those
    cases and this one in fact present the same question:        Did the
    IEP's proposed placement violate the IDEA's LRE mandate?
    The text of § 1412(a)(5)(A) and prior precedent provide
    the guidance we need to evaluate whether Natick complied with the
    LRE mandate here.    In eschewing the Daniel R.R. test because "[t]he
    Act itself provides enough of a framework," we join the Seventh
    Circuit.     See Beth B. v. Van Clay, 
    282 F.3d 493
    , 499 (7th Cir.
    2002) (declining to adopt the Daniel R.R. test).
    C.D.'s parents argue that the Daniel R.R. test adds
    needed "complexity" to the statute's terms.       But determining an
    appropriate placement for a disabled child is already a complex
    task.     It is one that "involves choices among educational policies
    and theories -- choices which courts, relatively speaking, are
    10   See, e.g., C.G. ex rel. A.S. v. Five Town Cmty. Sch.
    Dist., 
    513 F.3d 279
    , 287 (1st Cir. 2008) (holding that the district
    court "supportably concluded" that public school day placement
    rather than residential placement requested by parents was least
    restrictive environment appropriate); Roland 
    M., 910 F.2d at 993
    ;
    Abrahamson v. Hershman, 
    701 F.2d 223
    , 229-30 (1st Cir. 1983).
    - 18 -
    poorly equipped to make."    Roland 
    M., 910 F.2d at 992
    ; see also
    C.G. ex rel. A.S. v. Five Town Cmty. Sch. Dist., 
    513 F.3d 279
    , 289
    (1st Cir. 2008) (acknowledging "the truism that courts should
    recognize the expertise of educators with respect to the efficacy
    of educational programs").   That is why the IDEA "vests" state and
    school "officials with responsibility for" choosing a child's
    placement.   Endrew 
    F., 137 S. Ct. at 1001
    .    And it is why courts
    owe respect and   deference to the expert decisions of        school
    officials and state administrative boards.    See Lessard v. Wilton-
    Lyndenborough Coop. Sch. Dist. (Lessard II), 
    592 F.3d 267
    , 270
    (1st Cir. 2010) ("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.'" (quoting 
    Rowley, 458 U.S. at 207
    )).     There is no need to
    add complexity to the LRE mandate in the form of Daniel R.R.'s
    judicial gloss, and every reason not to do so.
    We proceed to review the district court's decision under
    § 1412(a)(5)(A) and our cases interpreting it.      Again, the IDEA
    mandates, at § 1412(a)(5)(A):
    To the maximum extent appropriate, children
    with disabilities . . . are educated with
    children who are not disabled, and special
    classes, separate schooling, or other removal
    of children with disabilities from the regular
    educational environment occurs only when the
    nature or severity of the disability of a
    - 19 -
    child is such that education in regular
    classes with the use of supplementary aids and
    services cannot be achieved satisfactorily.
    20    U.S.C.       § 1412(a)(5)(A).         Our       cases    have    "weighed"    this
    preference for mainstreaming "in concert with the" FAPE mandate.
    Roland 
    M., 910 F.2d at 992
    -93.                 The two requirements "operate in
    tandem       to      create   a    continuum"          of     possible       educational
    environments, each offering a different mix of benefits (and costs)
    for   a     student's    academic,     as      well    as     social   and   emotional,
    progress.11        
    Id. For schools,
    complying with the two mandates
    means evaluating potential placements' "marginal benefits" and
    costs and choosing a placement that strikes an appropriate balance
    between      the     restrictiveness      of    the    placement       and   educational
    progress.         Id.; see also Amann v. Stow Sch. Sys., 
    982 F.2d 644
    ,
    650 (1st Cir. 1992) (per curiam) (phrasing the question as whether
    the "IEP 'reasonably calculated' the balance between academic
    progress and" restrictiveness).
    The    district    court     correctly         identified     this   legal
    framework.         Quoting Roland M., the district court explained that
    "'[m]ainstreaming may not be ignored, even to fulfill substantive
    educational criteria.'            Rather, the benefits to be gained from
    11 We have recognized that educating students with
    disabilities with their nondisabled peers can have benefits for
    disabled students' social and communication skills. See Lenn v.
    Portland Sch. Comm., 
    998 F.2d 1083
    , 1090 & n.7 (1st Cir. 1993)
    (citing 
    Oberti, 995 F.2d at 1216-17
    ).
    - 20 -
    mainstreaming must be weighed against the educational improvements
    that could be attained in a more restrictive (that is, non-
    mainstream) environment." 12       C.D. II,    
    2018 WL 3510291
    , at *3
    (internal citation omitted) (quoting Roland 
    M., 910 F.2d at 993
    )).
    The parents argue, again relying on applications of
    Daniel R.R., that the district court erred in failing to ask
    whether C.D. could have been educated in the regular classroom
    considering "the whole range of supplemental aids and services."
    
    Oberti, 995 F.2d at 1216
    .      The record belies this contention.         The
    district   court   here   verified   that    Natick   and   the    BSEA   had
    considered "the nature and severity" of C.D.'s disability as well
    as the impact of "supplementary aids and services."               20 U.S.C.
    § 1412(a)(5)(A).     It noted that the BSEA and Natick had both
    examined   three   potential     placements:   the    regular     classroom,
    replacement classes, and the ACCESS Program.            C.D. II, 
    2018 WL 3510291
    , at *3.      Then the district court found that evidence
    supported the BSEA's and Natick's conclusion that the ACCESS
    Program    was     appropriate     because     of     C.D.'s      particular
    disability -- an "intellectual disability in conjunction with
    12   The parents argue that the district court "erred where
    it did not even articulate the need to balance non-academic
    benefits   against  the   putative  academic   advantages  of   a
    substantially separate classroom."      But the district court
    properly understood the balancing inquiry outlined in Roland M.
    - 21 -
    weaknesses in receptive and expressive language."13                       
    Id. (internal quotation
    marks omitted).
    We see no error in the district court's appropriately
    deferential analysis.             As we have emphasized, the IDEA vests state
    and local educational officials, not federal courts, with the
    primary responsibility to make placement decisions consistent with
    § 1412(a)(5)(A).
    C.
    C.D.'s      parents     next     argue      that     the   district   court
    ignored the plain language of the IDEA in affirming the BSEA's
    ruling     that    the     IEPs    complied       with    the   statute's    transition
    provision.        Not so.
    We have previously held that the IDEA "does not require
    a stand-alone transition plan."                   Lessard v. Wilton Lyndeborough
    Coop. Sch. Dist. (Lessard I), 
    518 F.3d 18
    , 24 (1st Cir. 2008).
    Nor   does   the     statute       require    that       the    underlying   transition
    assessments        take      a     particular        form.          See      20    U.S.C.
    § 1414(d)(1)(A)(i)(VIII).             Indeed, there is no restriction on the
    means of gathering information about a student's interests or
    abilities that may be relevant to the development of postsecondary
    transition        goals.      See,    e.g.,       Mass.    Dep't    of    Elementary    &
    13  C.D.'s parents' dispute of a related factual finding
    made by the BSEA in its initial ruling on the LRE issue is
    misplaced. The district court ultimately reviewed the facts as
    clarified by the BSEA.
    - 22 -
    Secondary     Educ.,     Transitional        Assessment        in     the   Secondary
    Transition Planning Process, Technical Advisory SPED 2014-4, at 1-
    3 (Apr. 9, 2014) (declining to adopt 'a restrictive approach which
    might seem to imply the required use of highly specialized formal
    assessments for each student").
    The      district    court    did     not    err   in    articulating   or
    applying    these      transition      requirements.            It    discussed     the
    statute's assessment and planning dimensions, it cited repeatedly
    to Massachusetts' guidance implementing the federal provision, and
    it   relied     on     case     law   correctly         applying     the    transition
    requirement.         See C.D. I, 
    2017 WL 3122654
    , at *19, *21 (citing
    Sebastian M. v. King Philip Reg'l Sch. Dist., 
    774 F. Supp. 2d 393
    ,
    407 (D. Mass. 2011), aff'd, 
    685 F.3d 79
    (1st Cir. 2012)).
    The district court then reasonably applied those rules
    in affirming the BSEA's ruling.            The IEPs stated grade-appropriate
    goals and services designed to prepare C.D. for the post-secondary
    transition.14        See Lessard 
    I, 518 F.3d at 25
    ; see also, e.g.,
    14   Specifically, C.D.'s 2012-2013 IEP stated that C.D.'s
    parents hoped she would receive a high school diploma and
    vocational training.    The IEP outlined educational goals and
    services that would have helped C.D. make progress toward that
    diploma, and it also provided for vocational services from the
    school's learning center. The 2013-2014 IEP was similar, and it
    added opportunities to meet with the school's guidance counselor
    and career specialist to discuss post-secondary plans. The final
    2014-2015 IEP further proposed educational and vocational services
    and set out specific goals related to job readiness, job coaching,
    and independent living.
    - 23 -
    Rodrigues v. Fort Lee Bd. of Educ., 
    458 F. App'x 124
    , 128 (3d Cir.
    2011) (finding adequate an IEP that listed a transition goal and
    noted available services).       And the 2012-2013 and 2013-2014 plans
    reflected    and   were    developed    based    on   a   transition-specific
    discussion    at     the   2012-2013    IEP     meeting   and     on   extensive
    educational    and    psychological     evaluations       done    of   C.D.   and
    provided to Natick as part of the IEP development process.                    The
    final 2014-2015 IEP reflected and was based on assessments like
    these as well as a formal transition assessment.                 All three IEPs
    contained "appropriate measurable postsecondary goals based upon
    age appropriate assessments."     20 U.S.C. § 1414(d)(1)(A)(i)(VIII)(aa).
    IV.
    Affirmed.
    - 24 -
    

Document Info

Docket Number: 18-1794P

Citation Numbers: 924 F.3d 621

Judges: Torruella, Lynch, Kayatta

Filed Date: 5/22/2019

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (22)

DS EX REL. DS v. Bayonne Bd. of Educ. , 602 F. Supp. 3d 553 ( 2010 )

Lessard v. WILTON LYNDEBOROUGH COOP. SCHOOL DIST. , 518 F.3d 18 ( 2008 )

rafael-oberti-by-his-parents-and-next-friends-carlos-and-jeanne-oberti , 995 F.2d 1204 ( 1993 )

D.B. Ex Rel. Elizabeth B. v. Esposito , 675 F.3d 26 ( 2012 )

Fry v. Napoleon Community Schools , 137 S. Ct. 743 ( 2017 )

Daniel R.R. v. State Board of Education, El Paso ... , 874 F.2d 1036 ( 1989 )

michael-devries-by-his-parent-and-next-friend-marjorie-ann-deblaay , 882 F.2d 876 ( 1989 )

beth-b-and-susan-and-tom-b-individually-and-as-next-friends-of-beth-b , 189 A.L.R. Fed. 683 ( 2002 )

Christopher Amann v. Stow School System , 982 F.2d 644 ( 1992 )

Lessard v. Wilton-Lyndeborough Cooperative School District , 592 F.3d 267 ( 2010 )

Sebastian M. v. King Philip Regional School District , 774 F. Supp. 2d 393 ( 2011 )

Daniel Lenn, Etc. v. Portland School Committee , 998 F.2d 1083 ( 1993 )

D.F. And D.F., on Behalf of N.F. v. Ramapo Central School ... , 430 F.3d 595 ( 2005 )

C.G. Ex Rel. A.S. v. Five Town Community School District , 513 F.3d 279 ( 2008 )

L.B. Ex Rel. K.B. v. Nebo School District , 379 F.3d 966 ( 2004 )

mary-ann-roncker-on-behalf-of-neill-roncker-individually-and-on-behalf-of , 700 F.2d 1058 ( 1983 )

Martin Rivera-Gomez v. Rafael Adolfo De Castro , 843 F.2d 631 ( 1988 )

Daniel Abrahamson, Etc. v. Corrine Hershman, Etc. , 701 F.2d 223 ( 1983 )

Endrew F. v. Douglas County School Dist. RE–1 , 137 S. Ct. 988 ( 2017 )

sacramento-city-unified-school-district-board-of-education-v-rachel-h , 14 F.3d 1398 ( 1994 )

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