USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________________
No. 93-1123
DANIEL LENN, ETC., ET AL.,
Plaintiffs, Appellants,
v.
PORTLAND SCHOOL COMMITTEE, ET AL.,
Defendants, Appellees.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U. S. District Judge]
____________________
_________________________
Before
Torruella, Selya and Boudin, Circuit Judges.
______________
_________________________
Richard L. O'Meara, with whom Murray, Plumb & Murray was on
___________________ ______________________
brief, for appellants.
Eric R. Herlan, with whom Peter H. Stewart, Assistant
________________ __________________
Attorney General, and Drummond Woodsum Plimpton & MacMahon were
_____________________________________
on consolidated brief, for appellees.
_________________________
July 15, 1993
_________________________
SELYA, Circuit Judge. This appeal features a
SELYA, Circuit Judge.
_______________
controversy between the parents of a handicapped child and a
local school committee. Despite the parents' protests, a state
hearing officer declared the school committee's 1991-92
individualized education program (IEP) appropriate for the
child's needs and in compliance with federal law. The United
States District Court for the District of Maine upheld the
finding. We affirm.
I. BACKGROUND
I. BACKGROUND
Daniel Lenn, a minor, is handicapped within the meaning
of the Individuals with Disabilities Education Act (IDEA), 20
U.S.C. 1400-1485 (1988 & Supp. III 1991).1 Daniel has a
severe, non-verbal learning disability connected with the brain's
right hemisphere. While his verbal IQ test scores are average to
low average, Daniel has difficulty interpreting non-verbal
messages, such as facial cues. He has a short attention span,
lacks the ability to intake, process, or retrieve information in
an organized way, possesses poor visual memory, often
misperceives the world around him, and pays excessive attention
to small details. His disability inhibits social interaction
with peers and impedes academic progress.
Daniel attended the Portland, Maine public schools as a
____________________
1In their complaint, the plaintiffs also invoke section 504
of the Rehabilitation Act, 29 U.S.C. 794 (1988). Concluding
that the sweep of the two statutes is identical for purposes of
this case, the parties have briefed and argued their points
solely with reference to the IDEA. We assume arguendo that the
________
parties' assessment is accurate. Hence, we analyze the assigned
errors under the IDEA.
2
special education student through the eighth grade. While he
advanced from year to year, his attainments fell steadily behind
those of his peers. His progress slowed to a crawl during the
1989-90 and 1990-91 school years. By July 1991, Daniel had
completed the eighth grade; nevertheless, his reading and
mathematical calculation scores were at roughly a sixth-grade
level and his score in applied mathematics was at a second-grade
level.
Daniel's eighth-grade year (1990-91) was interrupted by
a one-month midwinter hospital stay, during which treating
professionals illuminated the nature and extent of his cognitive
disability. That July, Daniel's parents placed him in a summer
program at Eagle Hill, a private school in Massachusetts. They
also contacted the Cleveland Clinic and arranged to have Daniel
undergo a series of additional educational, neurological, and
psychological examinations. Relying in part on the new
information generated through the Lenns' efforts, the Portland
School Committee (Portland) shifted gears, scrapped several of
its earlier (unsuccessful) approaches, and proposed an IEP for
Daniel's ninth-grade education that contained several
innovations. Nevertheless, Daniel's parents rejected the public-
school-based program, unilaterally enrolled Daniel as a full-time
residential student at Eagle Hill,2 and requested a hearing on
the IEP's adequacy.
____________________
2Daniel is still in residence at Eagle Hill, albeit at
considerable expense to the Lenns.
3
After pondering testimony from eighteen witnesses and
reviewing numerous exhibits, the state hearing officer concluded
that Portland's IEP for the 1991-92 school year was "reasonably
calculated to be of significant educational benefit in an
environment which is much less restrictive than Eagle Hill."
Accordingly, he rejected the Lenns' remonstrance. The federal
district court upheld the agency determination. This appeal
ensued.3
II. STATUTORY OVERVIEW
II. STATUTORY OVERVIEW
We start our substantive discussion by parsing the
statutory scheme and describing how, and to what extent, parents
or guardians displeased by a school board's response to a child's
handicap may seek judicial review of an IEP.
A
A
To qualify for federal funding under the IDEA, a state
must offer "all children with disabilities . . . a free
appropriate public education." 20 U.S.C. 1400(c), 1412(1).
In this context, appropriateness requires that the instructional
plan be custom tailored to address the handicapped child's
"unique needs," 20 U.S.C. 1400(c), in a way "reasonably
calculated to enable the child to receive educational benefits."
Board of Educ. v. Rowley, 458 U.S. 176, 207 (1982); accord Amann
______________ ______ ______ _____
____________________
3Daniel Lenn and his parents, Stephen and Eileen Lenn,
plaintiffs below, are appellants in this court. Portland and the
Maine Department of Education, defendants below, appear as
appellees. In view of the community of interest between the
school committee and the state agency, we treat the appeal as if
Portland were the sole appellee.
4
v. Stow Sch. Sys., 982 F.2d 644, 647 (1st Cir. 1992); Roland M.
______________ _________
v. Concord Sch. Comm., 910 F.2d 983, 987 (1st Cir. 1990), cert.
__________________ _____
denied, 111 S. Ct. 1122 (1991). Because the IEP a written
______
document detailing the student's current educational level, the
short-term and long-term goals of the educational plan, the
specific services to be offered (including transition services),
and a set of objective criteria for subsequent evaluation, see 20
___
U.S.C. 1401(20); 34 C.F.R. 300.346 (1992) comprises the
centerpiece of a state's IDEA-compelled response to a particular
child's handicap, the critical inquiry in a case of this genre is
"whether a proposed IEP is adequate and appropriate for a
particular child at a given point in time." Burlington v.
__________
Department of Educ., 736 F.2d 773, 788 (1st Cir. 1984), aff'd,
____________________ _____
471 U.S. 359 (1985).
The IDEA does not promise perfect solutions to the
vexing problems posed by the existence of learning disabilities
in children and adolescents. The Act sets more modest goals: it
emphasizes an appropriate, rather than an ideal, education; it
requires an adequate, rather than an optimal, IEP.
Appropriateness and adequacy are terms of moderation. It follows
that, although an IEP must afford some educational benefit to the
handicapped child, the benefit conferred need not reach the
highest attainable level or even the level needed to maximize the
child's potential. See Rowley, 458 U.S. at 198; Roland M., 910
___ ______ _________
F.2d at 992.
The IDEA also articulates a preference for
5
mainstreaming. See 20 U.S.C. 1412(5) (requiring states to
___
educate handicapped and non-handicapped children together "to the
maximum extent appropriate"). Translated into practical
application, this preference signifies that a student "who would
make educational progress in a day program" is not entitled to a
residential placement even if the latter "would more nearly
enable the child to reach his or her full potential." Abrahamson
__________
v. Hershman, 701 F.2d 223, 227 (1st Cir. 1983); accord Hampton
________ ______ _______
Sch. Dist. v. Dobrowolski, 976 F.2d 48, 52 (1st Cir. 1992). And,
__________ ___________
moreover, when the bias in favor of mainstreaming is married to
the concepts of appropriateness and adequacy, it becomes apparent
that an IEP which places a pupil in a regular public school
program will ordinarily pass academic muster as long as it is
"reasonably calculated to enable the child to achieve passing
marks and advance from grade to grade." Rowley, 458 U.S. at 204.
______
B
B
A parent or guardian may challenge an IEP's adequacy by
demanding a due process hearing before the state educational
agency. See 20 U.S.C. 1415(b)(2), 1415(c). If the agency
___
approves the IEP, the parent or guardian may seek further review
in either state or federal court. See id. at 1415(e)(2). The
___ ___
relevant statutory provision requires the forum court to mull the
administrative record, take additional evidence under certain
circumstances, and "base[] its decision on the preponderance of
the evidence." Id. While the IDEA envisions judicial review,
___
the statute "is by no means an invitation to the courts to
6
substitute their own notions of sound educational policy for
those of the school authorities which they review." Rowley, 458
______
U.S. at 206. Rather, the law contemplates an intermediate
standard of review on the trial-court level a standard which,
because it is characterized by independence of judgment, requires
a more critical appraisal of the agency determination than clear-
error review entails, but which, nevertheless, falls well short
of complete de novo review. See Roland M., 910 F.2d at 989;
__ ____ ___ _________
Colin K. v. Schmidt, 715 F.2d 1, 5 (1st Cir. 1983).
________ _______
In the course of this independent review, the
administrative proceedings must be accorded "due weight."
Rowley, 458 U.S. at 206; see also Colin K., 715 F.2d at 5.
______ ___ ____ _________
Although the exact quantum of weight is subject to the district
judge's exercise of informed discretion, see Hampton, 976 F.2d at
___ _______
52; G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 946 (1st Cir.
____ _______________________
1991), the judge is not at liberty either to turn a blind eye to
administrative findings or to discard them without sound reason.
See Burlington, 736 F.2d at 792 ("The court, in recognition of
___ __________
the expertise of the administrative agency, must consider the
findings carefully and endeavor to respond to the hearing
officer's resolution of each material issue."). In the end, the
judicial function at the trial-court level is "one of involved
oversight," Roland M., 910 F.2d at 989; and in the course of that
_________
oversight, the persuasiveness of a particular administrative
finding, or the lack thereof, is likely to tell the tale.
C
C
7
Determining the adequacy of an IEP is a fact-intensive
exercise. Consistent with this verity, the governing standard
for appellate review in an IDEA case is firmly settled:
[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.
Id. at 990-91. The clear-error hurdle is, of course, quite high.
___
See, e.g., Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148,
___ ____ ________ ___________________________
152 (1st Cir. 1990) (holding that, under a regime of clear-error
review, an appellate court "ought not to upset findings of fact
or conclusions drawn therefrom unless, on the whole of the
record, [the appellate judges] form a strong, unyielding belief
that a mistake has been made"). Even in precincts where the
clearly erroneous standard obtains, however, a trial court's
rulings of law are reviewed de novo. See LeBlanc v. B.G.T.
__ ____ ___ _______ ______
Corp., 992 F.2d 394, 396 (1st Cir. 1993); Dedham Water Co. v.
_____ ________________
Cumberland Farms Dairy, Inc., 972 F.2d 453, 457 (1st Cir. 1992).
____________________________
III. CLAIMED ERRORS OF LAW
III. CLAIMED ERRORS OF LAW
In an effort to sidestep clear-error review and take
shelter in the lee of a more accommodating standard, the Lenns
attribute two errors of law to the court below. They contend
that the court (1) applied the wrong legal yardstick in taking
the measure of the hearing officer's findings; and (2) failed
sufficiently to address each of Daniel's identified educational
needs in determining the adequacy of Portland's proposed IEP. We
discuss these contentions seriatim.
________
8
A
A
Appellants' flagship claim is that the lower court
affirmed the hearing officer's decision without conducting the
independent evidentiary review that the IDEA requires. The claim
founders: the record below contains all the earmarks of a
suitably deferential, yet suitably independent, judicial inquiry.
The linchpin of this conclusion is the district court's
opinion. In it, Judge Brody explains a reviewing court's duty,
canvasses the pertinent authorities, and acknowledges the
relationship between the hearing officer's findings and the
district court's oversight function, concluding that "while [the
district] court must make an independent ruling, [its] review
must be something short of de novo." Lenn v. Portland Sch.
__ ____ ____ _____________
Comm., No. 92-0011-P-H, slip op. at 6 (D. Me. Dec. 14, 1992) (D.
_____
Ct. Op.). The court's discussion could hardly be more pointed or
more accurate.
In the face of this pellucid prose, appellants have an
uphill battle. They argue that, although the district judge gave
lip service to the correct standard, he actually viewed the
evidence through a much more deferential glass. We recognize
that actions sometimes speak louder than words. Thus, a trial
court cannot satisfy its oversight obligation in an IDEA case by
reciting the catechism of independent review and then failing to
practice what it preaches. But when, as now, a trial court
delineates the proper rule of decision, citing book and verse,
the burden of demonstrating that the court is merely mouthing
9
empty platitudes rests with the party who mounts the accusation.
This is a heavy burden; it cannot be carried by perfervid
rhetoric or glib wordplay. To prevail on such a theory, the
accuser must offer solid indications that the district court in
fact strayed from the straight and narrow. After all, an
appellate tribunal ought not lightly assume that a federal trial
judge is indulging in the adjudicatory equivalent of a shell
game.
In this instance, we think the accusation that the
judge said one thing, but did another, is unfounded. The Lenns'
most touted point is their asseveration that the district court
expressly invoked the clear-error standard when it noted that a
court is "not confined to the hearing officer's decision if [it]
find[s] clear error." D. Ct. Op. at 10. Based primarily on this
remark,4 appellants invite us to disregard the court's professed
allegiance to the correct standard of review. We decline the
invitation.
First and foremost, we simply cannot credit appellants'
argument that this isolated reference indicates a wholesale
____________________
4The district court also wrote that it found "ample evidence
in the record" to support the hearing officer's decision. D. Ct.
Op. at 10. Appellants argue that this statement manifests an
abandonment of the preponderance-of-the-evidence test. This
argument proves nothing more than appellants' penchant for
grasping at straws especially since the context makes clear
that the lower court applied the proper test; indeed, in the very
same paragraph of its opinion, the court used the phrase
"preponderance of the evidence." Id. We will neither confine
___
district courts to the rote recitation of buzzwords nor penalize
them for relieving the tedium of opinion writing by the
occasional employment of artful synonyms.
10
abandonment of the principles of independent review. We think it
is far more likely, all things considered, that the reference to
"clear error" represents simply an infelicitous choice of phrase.
Indeed, a close perusal of the record makes manifest the depth of
judicial involvement and provides clinching evidence that the
district judge utilized the approved level of review. The
transcript reveals that the judge took a hands-on approach to the
decisional process. Instead of limiting his perscrutation to the
administrative record, he conducted what amounted to a mini-
trial, hearing testimony from two witnesses regarding Daniel's
educational needs and receiving newly emergent documentation
chronicling Daniel's progress at Eagle Hill. The judge then
carefully scrutinized all the evidence, new and old, and drew his
own conclusions from it. This is the very stuff from which
independent review is fashioned.
We have said enough. The law does not require district
courts to be precise to the point of pedantry. Consequently, an
appellate court must not hesitate to excuse an awkward locution
and give a busy trial judge a bit of breathing room. If using
the wrong word or phrase constituted grounds for reversal in
every case, much too high a premium would be placed on sheer
literalism. We have regularly refused to exact that premium.
See, e.g., Roland M., 910 F.2d at 991 n.4 (disregarding district
___ ____ _________
court's "infelicitous" choice of terminology where "the context,
and other statements in the court's memorandum" made plain that
the court fully understood the operative legal principle);
11
Collins v. Marina-Martinez, 894 F.2d 474, 477 n.4 (1st Cir. 1990)
_______ _______________
(similar); Desfosses v. Wallace Energy, Inc., 836 F.2d 22, 30
_________ _____________________
(1st Cir. 1987) (similar); United States v. Kobrosky, 711 F.2d
______________ ________
449, 456 (1st Cir. 1983) (similar); see also Clauson v. Smith,
___ ____ _______ _____
823 F.2d 660, 663 n.3 (1st Cir. 1987) ("We have held before, and
today reaffirm, that if `[a] reading of the colloquy and decision
as a whole . . . indicates that, despite some loose use of
language, the proper . . . standard was applied,' we will not
reverse on the basis of what amounts to a lapsus linguae.")
______ _______
(citation omitted); cf. Hampton, 976 F.2d at 54 (rejecting, on a
___ _______
burden of proof issue, appellants' "contention that the district
court actually did something other than that which it said it was
doing"). So here. Mindful that pettifoggery, for its own sake,
benefits no one, we will not disregard the totality of the
circumstances in a headlong rush to elevate formalism over
substance.
We add, moreover, that even if Judge Brody used the
challenged terminology in a purposeful manner, we would not
reverse. The "clear error" reference appears in a paragraph in
which, after restating the hearing officer's key findings that
the 1991-92 IEP offered Daniel a major change in services and
that the new mix was reasonably calculated to bestow a
significant educational benefit on him the judge acknowledged
his duty to afford the administrative proceeding due weight.5 A
____________________
5The court wrote: "While we are not confined to the hearing
officer's decision if we find clear error, we are constrained in
that we cannot impose our view of preferable educational methods
12
reference at this juncture to clear error is not inappropriate
since the precise degree of deference attributable to a hearing
officer's subsidiary findings of fact in an IDEA case ultimately
__________
rests within the trial court's discretion. See, e.g., Hampton,
___ ____ _______
976 F.2d at 52; Westmoreland, 930 F.2d at 946; Burlington, 736
____________ __________
F.2d at 792. That the district court may have afforded
particular administrative findings substantial respect even
deference on a par with clearly erroneous review would not
comprise reversible error so long as the court made an
independent ruling as to the IEP's adequacy based on a
preponderance of all the evidence, including the hearing
officer's duly weighted findings.
This criterion was satisfied. The opinion as a whole
shows conclusively that the judge made an independent
determination concerning the adequacy of Portland's IEP, throwing
all the available evidence into the pot. Among other things,
Judge Brody specifically discussed the testimony of Daniel's
teachers in Portland, the testimony of the Cleveland Clinic's
independent evaluators, and Daniel's standardized test scores.
D. Ct. Op. at 11. He also cited additional record evidence that
buttressed the hearing officer's evaluation of Daniel's past
progress in the Portland public schools and the likelihood of
future educational benefits should the 1991-92 IEP be
implemented. Id. at 10. Last, but surely not least, the judge
___
applied the proper burden of proof, concluding that the Lenns had
____________________
upon the state." D. Ct. Op. at 10.
13
not "proven [theircase] by a preponderance ofthe evidence." Id.6
___
It strains credulity to assume, in these circumstances,
that the district court's lonely reference to "clear error"
heralds an intention to disregard a standard of review explicitly
described in the court's opinion and indelibly etched upon its
pages. Hence, we find no warping of the standard of review. We
hasten to add, however, that even if the controversial phrase
represents more than a slip of the district court's pen a
supposition that we deem unsubstantiated the reference, by
itself, does not call into question the court's proper
performance of its oversight function.
B
B
Appellants next assert that the district court must
"determine separately for each area of identified educational
need . . . whether, by a preponderance of the evidence, [an IEP]
addresses that need" sufficiently. Appellants' Reply Brief at
11. Building on this premise, appellants then conclude that the
court below emasculated the requirement by failing to consider
____________________
6While the Lenns grudgingly acknowledge this reference, they
maintain that the court erred by requiring them to prove that
only Eagle Hill will provide Daniel with an appropriate education
____
when, in fact, their burden was merely to prove the
inappropriateness of Portland's IEP. On balance, we do not
believe it can fairly be said that the court misapprehended the
contours of the issue. Throughout its pages, the district
court's opinion is geared toward determining whether "the
proposed IEP was reasonably calculated to enable Daniel to
receive educational benefits." D. Ct. Op. at 10. Indeed, the
court pointedly wrote that "[a]lthough the Eagle Hill residential
program may well be the ideal educational environment for Daniel,
that is not the legal standard under [the] IDEA." Id.
___
This specific disclaimer sounds the death knell for appellants'
argument.
14
"separately" and "directly" whether Portland's IEP addressed
Daniel's non-academic needs in a meaningfully beneficial way. We
disagree with both the premise and the conclusion.
Admittedly, an IEP is designed as a package. It must
target "all of a child's special needs," Burlington, 736 F.2d at
___ __________
788 (emphasis supplied), whether they be academic, physical,
emotional, or social. See Roland M., 910 F.2d at 992 (explaining
___ _________
that "purely academic progress . . . is not the only indici[um]
of educational benefit"); Timothy W. v. Rochester, N.H. Sch.
___________ _____________________
Dist., 875 F.2d 954, 970 (1st Cir.) (observing that "education"
_____
under the Act is broadly defined), cert. denied, 493 U.S. 983
_____ ______
(1989); U.S. Dep't of Educ., Notice of Policy Guidance, 57 Fed.
Reg. 49,274 at 49,275 (1992) (stating that an IEP must address
"the full range of the child's needs"). Because a one-
dimensional view of an IEP would afford too narrow a foundation
for a determination that the program is reasonably calculated to
provide "effective results" and "demonstrable improvement" in the
various "educational and personal skills identified as special
needs," Burlington, 736 F.2d at 788, a district court's
__________
determination that an IEP complies with the Act necessarily
involves a host of subsidiary determinations.
Be that as it may, appellants' legal formulation
distorts the Act's requirements. The Act does not mandate, nor
has any court held it to require, that the district judge must
consider each unique need in isolation and make a separate
finding regarding the preponderance of the evidence in each and
15
every identified area. Such a requirement would serve merely to
balkanize the concept of educational benefit and to burden the
district courts without producing any offsetting advantages. We
hold that no such requirement exists. In the last analysis, what
matters is not whether the district judge makes a series of
segregable findings, but whether the judge is cognizant of all
the child's special needs and considers the IEP's offerings as a
unitary whole, taking those special needs into proper account.
The record also belies appellants' self-serving
suggestion that the district court assessed Daniel's academic
needs in a vacuum. A trial court charged with evaluating the
adequacy of an IEP cannot be said to have committed legal error
as long as (1) it does not overlook or misconstrue evidence of
record, and (2) its overall decision is based upon a supportable
finding that the program described in the IEP is reasonably
calculated to address the handicapped child's education-related
needs, both academic and non-academic. The district court's
finding in this case fits comfortably within that rubric. We
explain briefly.
The district court explicitly acknowledged "Daniel's
self-esteem and social skills needs" and took pains to limn the
"wide range of after-school support services" proposed by
Portland to address those needs. D. Ct. Op. at 8. In
considering the likely impact of these services, the court
focused on Portland's plan to provide a social skills facilitator
and opined that, although hiring a facilitator might not be the
16
best mechanism for addressing Daniel's needs, "the ideal" is not
"the legal standard under [the] IDEA." Id. at 10; see also id.
___ ___ ____ ___
at 12. The court observed that Portland's program would "enable
Daniel to remain in his home community and interact daily with
non-disabled peers," id. at 10, thus furthering his social
___
development.7 Finally, the judge mentioned that while "the
goals for Daniel's social and organizational skill development
would be more useful if they could be objectively measured," id.
___
at 11 n.2, this deficiency does not undermine the IEP.
Based on these, and other comments, it is clear beyond
hope of contradiction that Portland's ability to address Daniel's
non-academic needs informed the district court's overall
determination that the IEP comports with the Act's requirements.
No more is exigible.
IV. WEIGHT OF THE EVIDENCE
IV. WEIGHT OF THE EVIDENCE
Appellants' final assignment of error posits that the
district court blundered in concluding that Portland's IEP would
____________________
7We do not accept appellants' hypothesis that the mainstream
nature of a proposed placement can never enter into the primary
analysis of an IEP's adequacy. When a child, like Daniel,
demonstrates a particular need for learning how to interact with
non-disabled peers, a mainstream placement will almost inevitably
help to address that need. Such an integral aspect of an IEP
package cannot be ignored when judging the program's overall
adequacy and appropriateness. The Third Circuit, which recently
reaffirmed the special nature of the educational benefits that
mainstream programs confer, apparently shares this view. See
___
Oberti v. Board of Educ., ___ F.2d ___, ___ (3d Cir. 1993) [1993
______ ______________
WL 178480, *9] (observing that, in assessing the educational
benefit of placing a handicapped child with non-handicapped
peers, "the court must pay special attention to those unique
benefits the child may obtain from integration in a regular
classroom . . ., i.e., the development of social and
____
communication skills from interaction with nondisabled peers").
17
provide Daniel with an appropriate public education. We discern
no clear error. To the contrary, the record fully sustains a
finding that Portland's IEP is adequate and appropriate to ensure
the requisite degree of educational benefit.
On this score, appellants' cardinal contention is that
Portland's IEP fails to take account of Daniel's inadequate
social skills. We demur. The record reflects that the IEP
forthrightly addresses this area of critical need, offering
Daniel an array of after-school socialization services. For
example, Daniel would spend three hours a day, three days a week,
with a social skills facilitator, who would encourage and oversee
his involvement in extracurricular and community-based
activities. The facilitator would work to hone Daniel's skills
in relating to non-disabled peers in a real-world milieu.8 On
the remaining school days, Daniel would receive social skills
programming in more structured environments, spending one
afternoon at a one-on-one counseling session with a doctorate-
level psychologist and the other in the company of handicapped
peers at a group counseling session devoted to self-esteem
____________________
8To be sure, there is room for principled disagreement about
the efficacy of a social skills facilitator. Portland's
witnesses and plaintiffs' experts expressed widely divergent
views on this topic. But, judges are not especially well-
equipped to choose between various educational methodologies.
See Rowley, 458 U.S. at 207-08. Where, as here, there is
___ ______
satisfactory record support for the appropriateness of the
particular approach selected by the school department and
approved by the state education agency, a reviewing court should
not meddle. See id.; see also Roland M., 910 F.2d at 992
___ ___ ___ ____ __________
(warning that "courts should be loathe to intrude very far into
interstitial details or to become embroiled in captious disputes
as to the precise efficacy of different instructional programs").
18
issues. Thus, while Portland's IEP may not contain the precise
programs that the parents prefer, it embodies a substantial,
suitably diverse socialization component.
On the academic side, the IEP places Daniel in a small,
special education class for English (with a student/teacher ratio
of eight-to-three) and four mainstream educational courses
(ranging in size from fifteen to eighteen students per class).
In the mainstream classes (at least three of which would be
taught or co-taught by a special educator), Daniel would study
Western civilization, mathematics,9 science, and an elective.
The special English class would occupy the first period of every
day and would prepare Daniel organizationally for the remainder
of the day. A small group session held during the last period
would help Daniel synthesize the day's lessons, hone his
organizational skills, and teach him homework strategies.
Portland also offered (1) personalized instruction in custom-
tailored learning techniques, on a daily basis, to assist Daniel
in mastering the curriculum; and (2) a home/school coordinator to
work once a week with Daniel's mother to synthesize home and
institutional instruction.
Under federal law, Portland's IEP package must assure
Daniel a "basic floor of [educational] opportunity." Rowley, 458
______
U.S. at 201 (internal quotation marks omitted). The finding that
____________________
9The mainstream math class contemplates individual
instruction geared to each student's level and needs an
especially important feature given the nature of Daniel's
handicap and the problems he has encountered in dealing with
applied mathematics.
19
Portland's proposal at least reaches this floor cannot be
faulted. The school committee tendered a rigorous program, to be
administered by a highly experienced and well-credentialed team,
catering to the full range of Daniel's needs through a variety of
mechanisms.10 The academic schedule, with its mix of
mainstream courses, small-class instruction, and private
programming in compensatory skills, furnished abundant reason for
the hearing officer and the court below to find that the IEP
would likely achieve measured success.11 The IEP's non-
academic component which includes numerous one-on-one and
small-group services geared toward fostering self-esteem,
enhancing socialization skills, developing organizational
abilities, and perfecting homework techniques furnishes a
satisfactory predicate for a similar finding in respect to non-
academic needs.
In short, Portland's IEP provides "personalized
instruction with sufficient support services to permit [Daniel]
to benefit educationally from that instruction." Rowley, 458
______
U.S. at 203. What is more, it allows Daniel to live at home with
____________________
10Appellants criticize the IEP for offering no services
geared toward physical education or health management needs. In
fact, the IEP affords Daniel an individualized physical education
program as well as a choice of extracurricular athletic
activities. Since the record fails to demonstrate that Daniel
suffers an infirmity in motor coordination or personal hygiene
that would require specially designed programs, no more is
required.
11Significantly, teachers who had previously taught Daniel
in large, mainstream classes testified that he participated in
class activities, did well, felt good about his work, and
achieved passing grades.
20
supportive parents, to be educated with non-disabled peers, and
to interact regularly with the members of his community.12 It
follows inexorably that the district court's findings of
appropriateness and adequacy comfortably survive clear-error
review.
V. CONCLUSION
V. CONCLUSION
We need go no further.13 The trial court correctly
discerned the relevant legal principles and applied them to the
task at hand. Its conclusion that Portland's proposed 1991-92
IEP meets Daniel's needs is supported by the record. Finding no
significant error of law or fact, we affirm the judgment below.
Affirmed.
Affirmed.
________
____________________
12This mainstream approach, which places Daniel in "the
least restrictive environment" appropriate to his needs, 34
C.F.R. 300.552(d) (1992), is the preferred choice under the
Act. See 20 U.S.C. 1412(5); see also Rowley, 458 U.S. at 202.
___ ___ ____ ______
13Appellants' brief is larded with claims that a
fundamentally flawed process created substantive infirmities in
Portland's IEP. However, in the district court, appellants
stipulated to the absence of any disputed procedural issues.
Because these procedural claims have not been properly preserved,
they need not be addressed in this venue. See United States v.
___ _____________
Slade, 980 F.2d 27, 31 (1st Cir. 1992) (discussing raise-or-waive
_____
rule); Hampton, 976 F.2d at 53-54 (refusing to consider claims
_______
not articulated to the district court).
21