USCA1 Opinion
September 23, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 91-2273
HAMPTON SCHOOL DISTRICT,
Plaintiff, Appellee,
v.
CHARLES DOBROWOLSKI, ET AL.,
Defendants, Appellants.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Nicholas Tsoucalas,* Judge]
_____
____________________
Before
Cyr, Circuit Judge,
_____________
Roney,** Senior Circuit Judge,
____________________
and Pieras,*** District Judge.
______________
____________________
Louis W. Helmuth with whom Van Buiten, Helmuth, Lobe & Rees was
________________ ________________________________
on brief for appellants.
Gerald M. Zelin with whom Diane M. Gorrow and Soule, Leslie,
________________ ________________ ______________
Zelin, Sayward and Loughman were on brief for appellee.
___________________________
____________________
____________________
_____________________
* Of the U.S. Court of International Trade, sitting by designation.
** Of the Eleventh Circuit, sitting by designation.
*** Of the District of Puerto Rico, sitting by designation.
RONEY, Senior Circuit Judge: The parents of a child with
____________________
learning disabilities who is entitled to individualized education
in the public schools sought reimbursement for the cost of a
private school for a two year period during which the parents
removed their child from the public school system, believing that
the educational program offered by the school district during
that period was inappropriate. An administrative hearing officer
ruled for the parents. Finding that the program offered by the
school district for those years was a free appropriate public
education as envisioned by the relevant statute, the district
court reversed the administrative decision. We affirm.
In light of the evidentiary support for the district court's
factual findings concerning the appropriateness of the
educational program offered by the school, we cannot say the
court committed clear error. In addition, although the parents
may not have waived their claims of procedural violations, the
shortcomings they allege do not entitle them to relief.
The Individuals with Disabilities Education Act (the Act),
20 U.S.C. 1400 et seq., requires that to qualify for federal
__ ___
financial assistance, participating states must adopt policies
assuring all students with disabilities the right to a "free
appropriate public education." 20 U.S.C. 1412(1). The state
must assure that, to the maximum extent appropriate, this
education will be provided in the least restrictive environment
with children who are not disabled. 20 U.S.C. 1412(5)(B). The
2
Act requires the state to establish and maintain certain
procedures "to assure that children with disabilities and their
parents or guardians are guaranteed procedural safeguards with
respect to the provision of a free appropriate public education."
20 U.S.C. 1415(a).
Schools are required to develop an individualized education
program (IEP) for each child with a disability. An IEP is a
program of instruction and related services that has been
specially designed to meet the unique needs of the child. The
IEP document contains information concerning the child's present
levels of performance; a statement of annual goals and short term
instructional objectives; a statement of the specific educational
services to be provided, and the extent to which this can be done
in the regular educational programs; and objective criteria for
measuring the student's progress.
The IEP is developed by a team including a qualified
representative of the local educational agency, the teacher, the
parents or guardian, and, where appropriate, the student. 20
U.S.C. 1401(a)(20). Thereafter, the IEP must be reviewed at
least annually and revised when necessary. 20 U.S.C.
1414(a)(5). Parents who disagree with a proposed IEP are
entitled to an impartial due process hearing. 20 U.S.C.
1415(b)(2). Any party aggrieved by the decision of the
administrative hearing officer can appeal to either state or
federal court. 20 U.S.C. 1415(e). An IEP is appropriate under
the Act if it provides instruction and support services which are
3
reasonably calculated to confer educational benefits to the
student. Board of Educ. v. Rowley, 458 U.S. 176, 200-07 (1982);
_________________________
Abrahamson v. Hershman, 701 F.2d 223, 226-27 (1st Cir. 1983).
______________________
Michael Dobrowolski, the son of Frances and Charles
Dobrowolski, was born on November 12, 1974. While Michael was in
second grade in Derry, New Hampshire, he was found to have
certain learning disabilities. Derry Cooperative School District
furnished IEPs for the 1983-84 and 1984-85 school years, when
Michael was in the third and fourth grades. Both of these IEPs
were accepted by the Dobrowolskis. Derry had proposed a more
intensive IEP for the fifth grade which was not implemented
because the family left the district and moved to Hampton, New
Hampshire.
The Hampton School District received from the Derry School
District Michael's report cards and the proposed fifth grade IEP.
In addition, representatives of Hampton met with Mrs. Dobrowolski
prior to the beginning of the 1985-86 school year and knew that
Michael was a special education student. At the start of that
term, however, Hampton had not yet offered an IEP. As a result,
Michael started the fifth grade in mainstream classes with no
special educational program. Several weeks later, on October 17,
1985, an IEP was developed for Michael. That plan placed Michael
in mainstream classes for all subjects, and made the resource
room available for up to three hours per week, as needed.
Michael did not make much use of the resource room the first
semester. His grades plummeted in the ensuing semesters. As his
4
grades fell, Michael's time in the resource room was increased,
reaching four hours per week by March 1986.
During the summer of 1986, the Dobrowolskis enrolled Michael
at the Learning Skills Academy, a private special education day
school, where he was tutored in math, social communication, peer
relation skills, and reading. Michael apparently made
significant progress there, and it appears that this contrast to
his performance at Hampton led the Dobrowolskis to question the
wisdom of Michael's continued enrollment in the public school.
In August 1986, Mrs. Dobrowolski was told by Mrs. Lee
Cooper, Hampton's director of special education, that Michael's
IEP for sixth grade could be the same as that for the fifth
grade, since federal law does not require more than an annual
review of an IEP, and the fifth grade IEP had been modified in
March 1986. Mrs. Cooper also told Mrs. Dobrowolski that the
district nonetheless would review Michael's IEP during the first
week of school. On September 2, however, Mrs. Dobrowolski
informed Hampton that she unilaterally had decided to enroll
Michael at Learning Skills Academy.
Meetings were held on September 4, 1986, and September 11,
1986. The IEP developed as a result of these meetings provided
for another increase in resource room time. It also provided for
modifications in Michael's mainstream academic classes. The
modifications included preferential seating, teacher cues to
Michael to pay attention, guidance to assist him in time
management, and short term goals with frequent checkups.
5
The Dobrowolskis disagreed with this IEP, as well as the
revisions presented at meetings in October, November, and
December of 1986. The Dobrowolskis requested a due process
hearing in January 1987. That request was later withdrawn
without prejudice. The Dobrowolskis refiled their request in
September 1987, contesting both the 1986-87 IEP and the IEP that
had been prepared for the 1987-88 school year. Michael remained
at the Learning Skills Academy during the sixth and seventh
grades. The parents sought reimbursement for the cost of tuition
at and transportation to the private school. Their challenge was
based on claims of both substantive and procedural violations of
the Act.
A due process hearing was held before a State of New
Hampshire hearing officer in February and March of 1988. The
hearing officer found that the IEPs Hampton offered for the 1986-
87 and 1987-88 school years were inappropriate. Finding the
program provided at the Learning Skills Academy appropriate, the
hearing officer ordered Hampton to reimburse the Dobrowolskis for
their expenses. The hearing officer did not address the
Dobrowolskis' claims of procedural violations. Hampton appealed
the administrative decision to the United States District Court
for the District of New Hampshire. After a short bench trial,
the district court overturned the hearing officer's decision and
entered judgment for Hampton.
The district court found that the September 1986 IEP
contrasted sharply with the one developed in October 1985 and
6
modified in March 1986, and that the individualized instruction
offered by this IEP "likely would have yielded more positive
academic results than did the previous IEPs." The district court
further found that the IEP proposed for 1987-88 was substantially
similar to the 1986-87 IEP. The court acknowledged that due
weight must be accorded the decision of the hearing officer, but
found that reversal of the administrative decision was warranted
because the preponderance of the evidence indicated that the IEPs
for the 1986-87 and 1987-88 school years offered programs
reasonably calculated to yield educational benefits in the least
restrictive environment.
Trial-Level Review
Trial-Level Review
The Act provides that, in reviewing the decision of a state
hearing officer, the 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). 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." Town of
________
Burlington v. Department of Educ., 736 F.2d 773, 791 (1st Cir.
_________________________________
1984), aff'd, 471 U.S. 359 (1985). "While the court must
_____
recognize the expertise of an administrative agency, as well as
that of school officials, and consider carefully administrative
7
findings, the precise degree of deference due such findings is
ultimately 'left to the discretion of the trial court.'" G.D. v.
_______
Westmoreland Sch. Dist., 930 F.2d 942, 946 (1st Cir.
_________________________
1991)(quoting Burlington, 736 F.2d at 792).
__________
In reviewing the administrative determination under the Act,
a district court is required to address two questions aimed at
the school's compliance with the procedural and substantive
requirements of the Act:
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).
________________________
The court below declined to address the first question,
stating that the Dobrowolskis had "provided no examples or proof
of any [procedural] violations." Addressing the second prong of
the test, the district court concluded that the preponderance of
the evidence showed that the IEPs offered for the 1986-87 and
1987-88 school years were appropriate, and reversed the decision
of the administrative officer.
Appellate Review
Appellate Review
The district court's determination of whether an IEP was
appropriate is a mixed question of law and fact. "[I]n the
absence of a mistake of law, the court of appeals should accept a
district court's resolution of questions anent adequacy and
appropriateness of an IEP so long as the court's conclusions are
not clearly erroneous on the record as a whole." Roland M. v.
____________
8
Concord Sch. Comm., 910 F.2d 983, 990-91 (1st Cir. 1990), cert.
_________________ ____
denied, U.S. , 111 S.Ct. 1122 (1991). If the trial
______ ____ ____
court's findings were based on a mistake of law, however, the
reviewing court is not bound by the "clearly erroneous" standard.
LoVuolo v. Gunning, 925 F.2d 22, 25 (1st Cir. 1991).
__________________
District Court's Factual Findings
District Court's Factual Findings
The district court committed no mistake of law in its
assessment of the appropriateness of the proposed IEPs. The
court properly articulated the governing legal issue as whether
the IEPs "guarantee some 'reasonable probability of educational
benefit with sufficient supportive services at public expense'
... in the least restrictive environment." The program at the
Learning Skills Academy may have provided Michael with a better
education than that offered by the public school. As long as the
IEPs proposed by Hampton met the minimum federal standard of
appropriateness, however, the Act does not require school
districts to reimburse parents who choose a superior placement
for their child. G.D. v. Westmoreland Sch. Dist., 930 F.2d 942,
______________________________
948-49 (1st Cir. 1991). Our task, therefore, is to determine
whether the district court committed clear error in concluding
that the IEPs Hampton offered were appropriate.
The Dobrowolskis assert that the district court's judgment
is invalid due to certain erroneous findings of fact. Our focus
is on whether the evidence supports the district court's
conclusion that Hampton's IEPs for the 1986-87 and 1987-88 school
years were reasonably calculated to confer educational benefits
9
in the least restrictive environment. If the district court's
ultimate conclusion regarding the appropriateness of the IEPs is
not clearly erroneous, we will not reverse that judgment even if
there were technical errors that do not affect the substantial
rights of the parties. See Sugarman v. Sugarman, 797 F.2d 3, 9
___ ____________________
(1st Cir. 1986); 28 U.S.C. 2111. "'Where the conclusions of
the [trier] depend on its election among conflicting facts or its
choice of which competing inferences to draw from undisputed
basic facts, appellate courts should defer to such fact-intensive
findings, absent clear error.'" Reliance Steel Products v.
____________________________
National Fire Ins. Co., 880 F.2d 575, 576 (1st Cir. 1989)
_________________________
(quoting Irons v. Federal Bureau of Investigation, 811 F.2d 681,
________________________________________
684 (1st Cir. 1987)). Thus, the specific factual findings of the
district court are to be set aside only if, upon review of the
entire record, we are left with the definite and firm conviction
that a mistake has been committed.
Our review of the record as a whole indicates that the
district court did not commit clear error. The following
evidence presented to the district court supports its conclusion
that the IEPs Hampton offered for the 1986-87 and 1987-88 school
years were appropriate:
First, there was evidence of Michael's progress at Hampton
during the first quarter of fifth grade. This was achieved with
minimal resource room support and minimal classroom
modifications.
10
Second, there was evidence that Michael's problems during
the remainder of fifth grade centered around inattention, lack of
motivation, and failure to complete homework assignments.
Third, the IEPs Hampton offered for the sixth and seventh
grades offered more services than the IEPs which governed during
the fifth grade, and addressed the attention, motivation, and
homework issues.
Fourth, school district witnesses testified that children
with disabilities similar to or more severe than Michael's have
made educational progress at Hampton in programs similar to the
programs offered to Michael in the 1986-87 and 1987-88 IEPs.
Fifth, that testimony was corroborated by professional
literature indicating that children with mild to moderate
learning disabilities generally make as much educational and
emotional progress in mainstream or mainstream/resource room
programs, with adequate support, as in full time segregated
classes or private schools devoted to children with disabilities.
Finally, evidence was introduced to show that the IEPs which
Hampton offered Michael for the 1986-87 and 1987-88 school years
reflected an established method for controlling an attention
deficit disorder without medication.
In light of the foregoing evidence, we cannot say that the
district court committed clear error in concluding that the IEPs
Hampton offered were appropriate. The specific factual findings
to which the Dobrowolskis attempt to assign error either were not
clearly erroneous or were not integral to the court's ultimate
11
conclusion regarding the appropriateness of the IEPs. There was
sufficient additional evidence before the district court to
support its ultimate finding regarding the appropriateness of the
IEPs.
12
Procedural Compliance
Procedural Compliance
The Dobrowolskis assign error to the district court's
refusal to address their assertion that Hampton failed to comply
with the procedural requirements of the Act. The district court
disposed of the Dobrowolskis' allegations of procedural
violations as follows:
Defendants allege that Hampton failed to follow
procedures required by the Act. However, defendants
have provided no examples or proof of any such
violations and the court will not sua sponte search the
__________
record for procedural errors. Hence, this argument
will not be addressed.
Claims of procedural errors not presented to the
administrative hearing officer are not preserved for judicial
review by the trial court. David D. v. Dartmouth Sch. Comm., 775
________________________________
F.2d 411, 424 (1st Cir. 1985), cert. den., 475 U.S. 1140 (1986).
__________
Claims not articulated to the district court cannot be raised on
appeal, even if they had been pressed before the hearing officer.
G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 950 (1st Cir.
________________________________
1991). We doubt the correctness of the district court's
refusal to review the Dobrowolskis' procedural claims on the
ground they were not specific enough in raising these claims. It
is true that the Dobrowolskis did not stress their claim of
procedural noncompliance to the district court, and that their
trial brief did not provide any specific examples of procedural
violations, but the pleadings before the district court contained
more than the "barest inference" of their claim. See Wallace
___ _______
Motor Sales v. American Motors Sales Corp., 780 F.2d 1049, 1067
___________________________________________
(1st Cir. 1985). In their Memorandum of Fact and Law in support
13
of Motion for Summary Judgment, the Dobrowolskis enumerated
several specific examples of procedural noncompliance, discussed
the law supporting their claims, and cited to specific evidence
in the record and to the hearing officer's decision. Their trial
brief directed the court's attention to pleadings in the
administrative record which recited their contentions of
procedural noncompliance in detail. Their attorney raised the
issue of procedural violations at the hearing before the trial
court judge.
Therefore, we have reviewed the Dobrowolskis' claims of
procedural violations but have determined that even if the claims
were not waived, the district court's failure to address the
issues is not grounds for reversal. The procedural flaws alleged
by the Dobrowolskis did not render the challenged IEPs invalid.
An IEP will be set aside for procedural violations only if there
is "some rational basis to believe that procedural inadequacies
compromised the pupil's right to an appropriate education,
seriously hampered the parents' opportunity to participate in the
formulation process, or caused a deprivation of educational
benefits." Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994
________________________________
(1st Cir. 1990) , cert. denied, U.S. , 111 S.Ct. 1122
____ ______ ____ ____
(1991). A number of the Dobrowolskis' claims refer to actions of
Hampton that occurred well before the 1986-87 and 1987-88 school
years, such as their mishandling of Michael's records and their
failure to provide needed services in the fall of 1985. Because
these alleged procedural violations occurred outside of the
14
relevant time frame, they cannot provide the basis for setting
aside the IEPs at issue.
Those flaws argued by the Dobrowolskis that do address the
1986-87 and 1987-88 IEPs also fail to provide grounds for
reversal. Although the IEPs may have been written by a single
member of Michael's IEP team, the record indicates that they were
developed through a team effort which included input from
Michael's parents and former teachers. It is permissible for one
person to draft the IEP as long as the parents are not denied the
opportunity to participate, and the members of the IEP team have
an opportunity to discuss and amend the IEP. Roland M., 910 F.2d
_________
at 994; see also 34 C.F.R. Part 300 App.C, 55.
________
The Dobrowolskis' also argue that reversal is warranted
because Hampton had determined Michael's placement before
developing his IEP, in violation of regulations promulgated under
the Act which require a student's placement to be "based on" the
IEP. 34 C.F.R. 300.552(a)(2). This argument must fail because
the procedural inadequacy alleged did not result in a deprivation
of Michael's right to an appropriate education or of the parents'
right to participate in the IEP process. In summary, any error
committed by the district court in refusing to address the
Dobrowolskis' claims of procedural violations was harmless.
Burden of Proof
Burden of Proof
The burden of proof at trial was on the school district as
the party challenging the hearing officer's decision. See Roland
___ ______
M., 910 F.2d at 991. The district court specifically stated that
__
15
it was placing the burden on the school district. We reject the
Dobrowolskis' contention that the district court actually did
something other than that which it said it was doing.
Admission of Deposition Transcripts
Admission of Deposition Transcripts
Although the Dobrowolskis arguably are correct in contending
that the district court committed error when it admitted into
evidence the discovery depositions of Dr. Clara Maslow and Dr.
George Storm, we need not decide the point because the trial
court ultimately disregarded this evidence. In its trial brief,
Hampton relied on the trial deposition transcripts to criticize
the reports of Maslow and Storm, the Dobrowolskis' experts, which
had been admitted in the administrative hearing. The district
court responded to those arguments in a footnote which reads:
The School District has criticized the Storm and Maslow
reports and claims their evaluations were faulty. The
court finds these criticisms immaterial given the
relatively little weight assigned to [the reports] by
the hearing officer. Furthermore, even assuming the
complete accuracy of those reports, the court finds the
IEPs offered by Hampton were appropriate.
This is the only reference the court made to the deposition
transcripts. It is clear from the court's statement that the
deposition transcripts were unnecessary to the court's
determination concerning the appropriateness of the IEPs. Any
error committed in the admission of the transcripts was harmless.
See Puerto Rico Ports Auth. v. M/V Manhattan Prince, 897 F.2d 1,
___ _______________________________________________
8 (1st Cir. 1990) (finding error harmless based on footnote in
district court's decision stating that trial court had ignored
erroneously admitted report).
16
Having considered all of the arguments made by the
appellants, we have determined that the district court did not
commit reversible error.
Affirmed.
________
17