Milford v. F., etc. ( 1997 )

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 97-1506
MILFORD SCHOOL DISTRICT,
Plaintiff, Appellee,
v.
WILLIAM F., ETC., AND CLAIRE F., ET AL.,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. James R. Muirhead, U.S. Magistrate Judge]
Before
Torruella, Chief Judge,
Lynch, Circuit Judge,
and Keeton,* District Judge.
Linda A. Theroux for appellants.
Diane M. Gorrow, with whom Soule, Leslie, Kidder, Zelin,
Sayward & Loughman was on brief, for appellee.
November 10, 1997
* Of the District of Massachusetts, sitting by designation.
KEETON, District Judge. This case arises under the
KEETON, District Judge.
Individuals with Disabilities Education Act (IDEA), 20 U.S.C.
1400-1420, New Hampshire's implementing legislation, N.H. Rev.
Stat. Ann. 186-C, federal regulations, 34 C.F.R. pt. 300, and
state regulations, N.H. Code Admin. R. Ed. 1101-1137. Appellants
seek full reimbursement from appellee for the costs incurred in
placing their educationally disabled daughter at a private
college preparatory school, the Dublin School, for the 1995-96
school year. Appellants argue that their daughter did not
receive either an appropriate educational placement or an
appropriate Individualized Education Plan (IEP) as required by
the IDEA framework. Throughout this litigation, appellants have
sought full reimbursement of the costs they incurred for the
1995-96 school year, arguing that their claim is supported by
Burlington v. Department of Educ., 736 F.2d 773, 792 (1st Cir.
1984), aff'd, 471 U.S. 359 (1985). Concluding that the district
court was correct in rejecting this claim, we affirm the judgment
of the district court.
The parents' freedom to place their child in a school
other than the one offered by the school district was never at
issue in this case. What was at issue was the parents' asserted
right to treat the alleged failure of the defendant School
District to satisfy the placement and IEP requirements within
prescribed times as entitling the parents to full reimbursement
for their unilateral, out-of-district placement of the child
without the approval of any hearing officer or court.
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Under 20 U.S.C. 1415(e), a section of the IDEA, the
district court had jurisdiction based on a federal question under
28 U.S.C. 1331, involving an appeal from an administrative
decision of a hearing officer acting for the New Hampshire
Department of Education. In this instance, the district court
assigned the case to Magistrate Judge James R. Muirhead, and the
appeal to this court is under 28 U.S.C. 636(c)(3) and 1st Cir.
Loc. R. 3.1. The final order of March 17, 1997 in the district
court granted summary judgment to the Milford School District. A
timely notice of appeal brought the matter to this Court.
I. Standards of Review
I. Standards of Review
A. By the District Court
A. By the District Court
We first address appellants' contention that the
district court was required to defer both to the hearing
officer's findings of fact and to her rulings of law, and that
alleged errors require that we reverse and order judgment for
appellants for full reimbursement.
The IDEA provides that upon appeal from a state
administrative officer's decision, the federal district court
shall receive the records of the
administrative proceedings, shall hear
additional evidence at the request of a
party, and, basing its decision on the
preponderance of the evidence, shall
grant such relief as the court determines
is appropriate.
20 U.S.C. 1415(e)(2). In exercising its authority under the
statute, a district court must address the following questions:
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First, has the State complied with the
procedures set forth in the Act?
Second, is the individualized educational
program developed through the Act's
procedures reasonably calculated to
enable the child to receive educational
benefits?
Board of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982).
On appeal from a district court judgment in a case
arising under this statute and these precedents, parents must do
more than show that a defendant school district or a state agency
did not in every respect comply formally with (as phrased in the
first question identified in Rowley) "the procedures set forth in
the act," including prescribed requirements for placement and for
developing an IEP. The parents must show some default or
deficiency material to outcome. See Lenn v. Portland Sch. Comm.,
998 F.2d 1083, 1088 (1st Cir. 1993).
In this instance, the magistrate judge's introductory
statement of the standard of district court review is consistent
with the statute and Rowley. Order of March 17, 1997 at 8-9. In
developing their argument that the magistrate judge's reasoned
explanation of his decision failed to consider and "give 'due
deference' to the Administrative Hearing Officer's Findings of
Fact and Rulings of Law," appellants allude from time to time to
testimony of Mrs. F that had not been transcribed. At no point
in the record before us, however, or indeed in oral argument, has
any suggestion been made of deliberate destruction or withholding
of a tape or transcript. In proceedings before the magistrate
judge, each party had the opportunity to call attention to any
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evidence and argument that could raise a genuine dispute of
material fact fatal to the other party's motion for summary
judgment. In these circumstances, the record does not support an
argument that either the district court or this court, in
determining whether a genuine dispute of material fact existed,
should infer that Mrs. F's relevant observations and opinions,
and reasons for them, were not adequately presented in the record
that was before the magistrate judge despite the missing
transcript. The magistrate judge's reasoned explanation of his
decision, in the 25-page ORDER issued, satisfied the terms and
conditions of district court review and deference explained in
Burlington, 736 F.2d at 792 (A federal trial court is "free to
accept or reject the findings [of the hearing officer] in part or
in whole" as long as it considers and responds to all material
findings).
Appellants' assertion that statutes and precedents
require deference to an administrative hearing officer's rulings
of law is not well founded. Legal rulings are subject to de novo
review, both in the district court and in this court. A district
court reviewing an administrative officer's rulings of law under
the IDEA framework is acting appropriately in disregarding any
rulings about applicable law that are not in conformity with
applicable statutes and precedents. See Abrahamson v. Hershman,
701 F.2d 223, 231 (1st Cir. 1983). An administrative hearing
officer's rulings of law, even if fully reasoned (and the more so
when stated without an explained basis, as were some of the
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rulings that the district court disregarded in this instance) are
not entitled to deferential review. No deferential review is
appropriate even if the rulings of law concern interpretation of
a state statute or state judicial decisions rather than federal
law.
With respect to a hearing officer's findings of fact,
it is true that a reviewing district court is directed to give
deference to them. Due deference, however, does not require
deference to a finding the cogency of which is impaired by the
hearing officer's dependence on an error of law. A district
court can disregard an administrative officer's findings of fact
whenever the court determines that they are unreliable or
incorrect in light of the totality of the record. See
Abrahamson, 701 F.2d at 230. In this case, because of the
officer's errors in applying both federal and state law as the
officer considered the facts (as explained in subsequent parts of
this opinion), the magistrate judge's decision, as a matter of
law on motion for summary judgment, not to defer to the officer's
factual findings was not erroneous as a matter of law and was not
an abuse of discretion.
B. Appellate Review of the Magistrate Judge's Decision
B. Appellate Review of the Magistrate Judge's Decision
Appellate review of rulings of law is plenary.
Meghan's parents could receive the full reimbursement
they seek only if, under applicable law, they had the choice by
their unilateral actions, and without the approval of any
administrative official or court, to place Meghan at the Dublin
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School without consent of the Milford School District and at the
Milford School District's expense. See Burlington, 736 F.2d at
798. In Roland M. v. Concord Sch. Comm., 910 F.2d 983, 999-1000
(1st Cir. 1990), cert. denied, 499 U.S. 12 (1991), we held that
an unjustified unilateral placement in a private school does not
give rise to a right to reimbursement unless it is finally
adjudged both that the parents' placement was appropriate and
that an inappropriate IEP, or none at all, had been developed by
the school district. The parents are not completely barred from
reimbursement because they acted unilaterally. But they act
unilaterally at a financial risk that serves as a deterrent to
hasty or ill-considered transfer, and "reimbursement will not be
available to the parents if it turns out that the school system
had proposed and had the capacity to implement an appropriate
IEP." Burlington, 736 F.2d at 798.
In this case, the district court determined that the
parent's unilateral, out-of-district placement did not satisfy
these requirements because (i) Meghan's IEP was appropriate under
federal and state law, (ii) the Dublin School, as a matter of
law, was not an appropriate placement, and (iii) the school
district offered an alternative appropriate placement at Milford
High. On appeal, the parents must show that the district court,
in determining that Meghan's placement and IEP were appropriate,
made mistakes of law or committed an abuse of discretion in
reaching the decision to allow summary judgment for the Milford
School District.
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II. The Merits
II. The Merits
Appellants challenge the IEP, first, on the ground
that, in practical effect, it predetermined that placement for
the 1995-96 school year would necessarily be at the Carroll
School. The hearing officer predicated her conclusion that the
IEP was inappropriate solely on the ground that "the [School]
District predetermined that Meghan would be placed at the Carroll
High School for her Ninth Grade Year (1995/96)." Decision of
Jan. 18, 1996, at 19.
Appellants also challenge the School District's offered
placement of Meghan at either the Carroll School or Milford High
as being inappropriate as a matter of law under the IDEA
framework.
Finally, appellants challenge the IEP and the
proposed placement on the ground that the district court erred in
determining that, as a matter of historical fact, Milford High
was offered as an alternative for Meghan's placement.
A district court's evaluation of an IEP is ordinarily a
mixed determination of law and fact. The central question posed
for review in this court is whether the district court's
determination that the IEP was appropriate was clearly erroneous
on the record as a whole. Hampton Sch. Dist. v. Dobrowolski, 976
F.2d 48, 52 (1st Cir. 1992)(citing Roland M.). Implicit in the
scope of authority of the district court is discretion in
assigning weight to various relevant historical facts.
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We perceive no clear error in the district court's
determination that Meghan's IEP did not "predetermine" her
placement. The district court could have reasonably inferred and
did expressly infer from correspondence, transcripts and other
communications in the record that placement was offered at
Milford High School. See Order of District Court at 15 (citing
the school district's exhibits nos. 10, 23, 27, 49, 76, and
especially no. 72, which was the transcript of the IEP meeting).
No predetermination at Carroll could have resulted from a process
in which placement at Milford High School was offered.
The district court's determination that the school
district offered Milford High as a placement during the July 1995
meetings was one of material historical fact that was not clearly
erroneous. As already noted, the district court relied on and
made express reference to substantial evidence in the record in
making this determination.
Also, the district court's evaluative determination
that the IEP and offered placements fulfilled Meghan's
educational needs resulted from an appropriate consideration of
the evidence in the record. See Order of District Court at 22
("Based on the record, I conclude that Milford High School could
have provided Meghan with a 'free appropriate public education,'
by conferring her educational benefits in the least restrictive
environment."). The additional transcript of the "due process
hearing" that appellants now ask us to consider contains a
recitation of the same arguments against the IEP's
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appropriateness that appellants have made elsewhere in the
history of proceedings in this case. Appellants do not call
attention to any challenge not considered and rejected, by the
district court, in a decision within the scope of its discretion.
The district court relied on substantial evidence,
including expert testimony, that placement at Milford High for
Meghan would be appropriate for her educational needs. Although
not itemizing and commenting upon all relevant evidence, pro and
con, as appellants argue should be done by a reviewing court, the
district court's reasoning is sufficiently explained to show that
the court recognized its obligation to weigh expert opinions
along with other evidence in reaching its evaluative
determination as to whether the offered placement was
appropriate. The district court's determination that Milford
High would be an appropriate placement for Meghan was not clearly
erroneous.
We conclude, also, that the district court's decision
that Milford High could have provided Meghan the "free
appropriate public education" (FAPE) required under the IDEA was
not affected by any error of law. The Supreme Court and this
Court have consistently construed the FAPE requirement to mean
that any given placement must guarantee "a reasonable probability
of educational benefits with sufficient supportive services at
public expense." G.D. v. Westmoreland Sch. Dist., 930 F.2d 942,
948 (1st Cir. 1991)(citing Rowley, 458 U.S. at 187-89).
Appellants have asserted that Dublin School, as a matter of law,
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was the only appropriate placement. In other cases, we have
expressly rejected the argument that only one placement could
meet the FAPE requirement. "[A] FAPE may not be the only
appropriate choice, or the choice of certain selected experts, or
the child's parents' first choice, or even the best choice." Id.
In this case, we conclude that the record supports the trial
court's inference that there was a reasonable probability that
Meghan would receive educational benefits and sufficient support
at Milford High. Testimony at the IEP and placement meetings
shows that several administrators and experts agreed on Milford
High's appropriateness and some personally supported the
maximization of Meghan's mainstreaming opportunities there.
We further conclude that the district court made no
error of law in determining that Milford High met the "least
restrictive environment" requirement under state and federal law.
Federal and state regulations under the IDEA, see 20
U.S.C. 1412 (5)(B); 20 U.S.C. 1414(a)(1)(C)(iv), prescribe
that all authorized decisionmakers (school district officials,
administrative officers and trial court judges) charged with
evaluating IEPs and placements must subject their determinations
to a check for conformity with the LRE requirement. 34 C.F.R.
300.550; N.H. Code Admin. R. Ann. Ed. 1115.02. Under the
federal regulations, the LRE means:
(1) That to the maximum extent
appropriate, children with disabilities,
including children in public or private
institutions or other care facilities,
are educated with children who are non-
disabled; and
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(2) That special classes, separate
schooling or other removal . . . occurs
only when . . . education in regular
classes with the use of supplementary
aids and services cannot be achieved
satisfactorily.
34 C.F.R. 300.550(b)(1)-(2) (emphasis added). The school
district, normally in cooperation with the parents and experts,
proposes placement from a continuum of alternative placements.
34 C.F.R. 300.551. The term "mainstreaming" refers to the
movement along a continuum from more restrictive or special to
less restrictive or regular placements.
The district court did not err in concluding that, as a
matter of law, the relevant federal and state administrative
prescriptions require that placement be made in the local public
school whenever the circumstances warrant a discretionary choice
among otherwise appropriate in-district and out-of-district
placements. 34 C.F.R. 300.552(c); N.H. Code Admin. R. Ann. Ed.
1115.05(b) ("Unless the educationally handicapped student's
individualized education program requires some other
arrangements, the student shall be educated in the school which
he/she would attend if not handicapped."). Under these
guidelines, even if it be assumed that the Dublin School was
otherwise appropriate, appellants would be entitled to
reimbursement only if the Milford School District did not offer
an appropriate placement at the local public school, Milford
High.
The parents contend that Meghan should have been placed
at the Dublin School because it was the only appropriate
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placement, once the requirement of mainstreaming into an LRE is
taken into account. This proposition, however, rests on an
erroneous interpretation of law regarding mainstreaming.
Placements are not "made by mechanically choosing the least
restrictive environment." See Abrahamson, 701 F.2d at 230. Nor
does the need to preserve the cooperative procedures among the
relevant participants support appellants' position. The
guidelines for a placement decision in New Hampshire law as in
federal law provide for involving many interested persons and a
wide variety of factors in the choice among alternative potential
placements, and the law does not specify that any one factor or
any one person's opinion must be given decisive weight. See N.H.
Code Admin. R. Ann. Ed. 1115.02-1115.05.
The LRE requirement does not support a course of action
in which parents who believe that their chid should attend a
particular private school are entitled to be reimbursed by the
school district just because that private school is less
restrictive. Even if the private school was less restrictive,
it would still have to be a placement deemed appropriate by an
authorized decisionmaker in terms of educational benefit. See
Roland M., 910 F.2d at 993 ("To determine a particular child's
place on this continuum, the desirability of mainstreaming must
be weighed in concert with the Act's mandate for educational
improvement. [Placement] requires a balancing of the marginal
benefits to be gained or lost on both sides of the maximum
benefit/least restrictive fulcrum."). In this case, when the
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required balancing is taken into account, the evidence of record
supports the district court's decision that the Milford High
placement strikes a permissible balance.
The judgment of the district court is AFFIRMED, with
costs to appellee.
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