Leslie B. v. Winnacunnet Coop. Sch. D

• Court: District Court, D. New Hampshire
• Decided: September 3, 1998
• Docket: CV-94-530-SD
• Status: Published

Opinion

Leslie B. v. Winnacunnet Coop. Sch. D CV-94-530-SD 09/03/98 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Leslie B . , by her parents, John C . and Nancy M .I .

v. Civil No. 94-530-SD

Winnacunnet Cooperative School District

O R D E R

In this action under 20 U.S.C. § 1415(e)(2) of the

Individuals with Disabilities Act (IDEA), both parties seek

clarification of this court's previous order dated April 9, 1998.

Once a court holds that the public placement in an

individualized education program (IEP) is inappropriate under the

IDEA, it is authorized to "grant such relief as the court

determines is appropriate." 20 U.S.C. § 1415(e)(2). Under this

section, the court enjoys "broad discretion," School Comm, v.

Department of E d . , 471 U.S. 359, 369 (1985), in fashioning

equitable relief, "including the appropriate and reasonable level

of reimbursement that should be required." Florence County

School District Four v. Carter, 510 U.S. 7, 16 (1993).

In the April 9, 1998, order, this court held that Leslie's

IEP for the 1994-95 school year was inappropriate. The school

district urges this court to award reimbursement only for the 1994-95 school year because the parents' due process challenge

pertained only to the IEP for the 1994-95 school year. However,

the results under the year-by-year approach urged by the school

district would be absurd. When parents challenge a proposed IEP

for a particular year and remove their child to private school in

the interim, the review process might take years to run its

course. If a court several years later determines that the

proposed IEP was inappropriate, but nonetheless awards

reimbursement only for that one year, then the child receives a

"free" education only for that one year. The school district

unfairly benefits from the ponderous pace of the IDEA review

process. To get full reimbursement for each year that review of

the proposed IEP is pending, the parents must institute separate

due process hearings challenging the tendered IEP for each

successive year. Such a result would be inefficient.

Next, the school district argues that Leslie B.'s parents

waived any right to reimbursement for the 1995-96 and the 1996-97

school years, pointing to an agreement signed by Leslie's mother.

Courts generally are reluctant to find waivers of rights under

the IDEA. See W .B . v . Matula, 67 F.3d 484, 498 (3d Cir. 1995)

("[For waivers of rights under the IDEA] we will apply the more

searching standards reserved for waivers of civil rights claims,

rather than general contract principles."). Under the terms of

2 the alleged agreement, the school district has suffered no

detriment, and there is obviously no consideration to support the

broad waiver that the school district alleges. See C a l a m a r i a n d

P e r i l l o , T he La w of C o n t r a c t s , § 4-1, at 132 (2d ed. 1977)

(explaining consideration). Thus the alleged agreement is not an

enforceable waiver.

Furthermore, the court will not take the alleged waiver into

account in fashioning appropriate equitable relief. The form was

clearly drafted by school officials, and it could be interpreted

as simply an understanding that Leslie would be attending a

private school instead of Winnacunnet. However, the form does

not unambiguously express that the parents waive the right to

reimbursement should a court ultimately adjudge inappropriate

Leslie's IEP.

The court therefore finds that Winnacunnet must reimburse

Leslie's parents for half of her tuition for the 1994-95, 1995-

96, and 1996-97 school years.

In addition, the court finds that transportation costs are

clearly related expenses under the IDEA, and may be included in

the award of reimbursement. However, the amount of

transportation expense sought by plaintiff appears excessive.

The school district has failed to raise the most clearly

objectionable aspect of the plaintiff's request; namely, the

3 daily transportation rates. Plaintiff seeks reimbursement for

transportation costs at $60 per day. Plaintiff has submitted no

evidence to support this rate, not even an indication of how

Leslie got to

school (e.g., by bus, car, limo), or how far the school was from

Leslie's home.

The court will give the plaintiff until October 1, 1998, to

respond with evidence supporting the requested transportation

rates. The court reminds plaintiff that the question is not how

much other children have received for transportation expense, but

how much was actually spent transporting Leslie. In addition,

defendants have pointed to evidence of discrepancies between the

number of days Leslie was allegedly transported to school and the

number of days Leslie actually attended school. If plaintiff

wishes to submit evidence on this issue, she may do so. At the

end of thirty days, the court, in exercise of its broad equitable

authority under the IDEA, will determine an award that represents

reasonable reimbursement for both tuition and transportation.

4 Conclusion

The court grants both parties' motions for clarification,

which has been provided herein.

SO ORDERED.

Shane Devine, Senior Judge United States District Court September 3, 1998 cc: Leslie B . , pro se Barbara F. Loughman, Esq.