Michael M . v . Pemi-Baker School CV-02-541-SM 08/31/04 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Michael D. M., parent and next friend of Michael M., Plaintiff
v. Civil N o . 02-541-SM Opinion N o . 2004 DNH 128 Pemi-Baker Regional School District, Defendant
O R D E R
This is one of at least three federal cases in which Michael
M., by his parents, appeals an educational hearing officer’s
decision in favor of a school district. See 20 U.S.C. §
1415(i)(2). See also Michael M . v . Pemi-Baker Regional Sch.
Dist., N o . 04-124-SM (D.N.H.); Michael M . v . Plymouth Sch. Dist.,
N o . 01-469-SM (D.N.H.). Currently before the court are the
parties’ respective decision memoranda and statements of material
facts. Neither party requested a hearing to present oral
argument or additional evidence. The matter i s , then, ready for
resolution. Background
The general factual background is fully described in the
court’s recent order in Michael M . v . Plymouth Sch. Dist., N o .
01-469-SM, 2004 DNH 64 (April 1 2 , 2004 D.N.H.) (“Michael I ” ) .
Those facts relevant to the disposition of this matter are
discussed as appropriate.
Michael M . was born on June 8 , 1987, and is now 17 years
old. He is exceptionally bright (at least one series of testing
indicates that he has an I.Q. in the 140 range) and nearly all of
his academic grades appear to be A’s or B’s. He plans to attend
college and has expressed interest in becoming an attorney -
goals that at least one of his examining doctors (Dr. Sarah
Brophy) considers well within his reach. See Michael I , supra.
He does, however, suffer from some learning disabilities. He has
been diagnosed with attention deficit and hyperactivity disorder
(“ADHD”), which resulted in a coding of “Other Health Impaired.”
He also has difficulty with penmanship, due to poor fine motor
skills, and deficits in expressing ideas in written form,
resulting in a coding of “Learning Disabled.” Because of his
2 disabilities, he has been receiving special educational services
for several years.
In June of 2002, when Michael’s father requested a due
process hearing before the New Hampshire Department of Education,
Michael had just completed the ninth grade during the 2001-2002
academic year at Plymouth Regional High School. Michael’s IEP
for that year was the result of an August 2 0 , 2001 due process
hearing decision, which this court affirmed in Michael I . During
the course of that academic year, Michael achieved substantial
academic success, notwithstanding the fact that he was enrolled
in one academic course more than is normally recommended for
students in ninth grade, and despite the fact that two of those
courses were at the “honors” level. He received a grade of “B”
or better in all subjects, except the two honor courses in which
he was enrolled (Honors English, in which he received a grade of
7 8 , and Honors Algebra, in which he received a grade of 7 9 ) .
While some of his second quarter grades did suffer somewhat, that
decline in academic performance seems to have been largely
related to his having missed six school days during a six-week
period in that quarter because of his extra-curricular
3 participation on the ski team. He also had three other all-day
absences during that period. Having missed nearly two full weeks
of school during that six-week quarter, the modest downturn in
his academic performance is hardly surprising. Once the ski
season ended, his academic performance appears to have rebounded
nicely.
Overall, Michael’s academic performance was at least average
and, in some cases, well above average. His academic progress
during that year was appropriate. Additionally, he performed
exceedingly well on several standardized tests that were
administered during that school year. For example, on the
national “Explore” test, which is given to all ninth graders,
Michael’s overall English score placed him in the 96th percentile
locally and the 95th percentile nationally. In mathematics, his
score placed him in the 98th percentile locally and the 94th
percentile nationally. In Reading, he ranked in the 96th
percentile locally, and the 98th percentile nationally. Of
particular significance, given Michael’s disabilities, were his
test results in English usage and mechanics (ranked in the 94th
percentile locally and 95th percentile nationally) and rhetorical
4 skills (ranked in the 98th percentile locally and 94th percentile
nationally). Results on other standardized tests, including the
Oral and Written Language Scales (also known as “OWLS,” on which
Michael scored in the 99th percentile), and the TOWL-3 test, were
similarly positive.
Nevertheless, in their request for a due process hearing,
Michael’s parents asserted that the School District had not
properly implemented Michael’s IEP and, as a consequence, he was
not making appropriate academic progress. See Hearing Officer
Decision dated July 2 2 , 2002 at 1 . Additionally, Michael’s
parents alleged that the School District had committed 18
different procedural violations. Id. at 2 .
Following a two-day hearing, during which six witnesses
testified, the hearing officer issued his written decision. In
i t , he concluded that Michael’s parents had failed to demonstrate
that the School District committed any procedural violations,
and, even assuming violations occurred, that neither Michael nor
the parents were prejudiced by them. Id. at 2-8. With regard to
5 the parents’ substantive claims, the hearing officer ruled in
favor of the School District, concluding:
The District has submitted credible evidence of the appropriate implementation of the 2001-2002 IEP, with regard to the goal of making [Michael] a more independent learner, and to the goals of addressing [Michael’s] need for greater skills in written expression and organization. There was no proof that teachers in English, Math and Science, or any other teacher, did not follow the IEP. There was insufficient proof to find that the District should have added certain items to the IEP during the school year. There was no requirement in the IEP that technology education or a technology assessment be provided to [Michael] during the school year. While the provision of directed technology education may have helped [Michael], there was no evidence [Michael’s] IEP required this, and indeed [Michael] might not have had the time for an additional subject. The evidence shows, by a preponderance of the evidence, that [Michael] made educational progress during the 2001- 2002 school year. The District is the prevailing party.
Id. at 1 7 . Michael’s father, proceeding pro s e , filed this
timely appeal.
Legal Framework and Judicial Standard of Review
Congress enacted the Individuals with Disabilities Education
Act (“IDEA”), 20 U.S.C. §§ 1400 et seq., “to ensure that all
children with disabilities have available to them a free
6 appropriate public education that emphasizes special education
and related services designed to meet their unique needs and
prepare them for employment and independent living.” 20 U.S.C. §
1400(d)(1)(A). Under the scheme established by the IDEA, and in
return for federal funding, state educational agencies establish
procedures to identify and evaluate disabled students in need of
special education services. See 20 U.S.C. § 1412. For each
identified child, a team comprised of the child’s parents,
teachers, and a representative of the educational agency develops
an individualized education plan (“IEP”) for the child.
An IEP consists of “a written statement for each child with
a disability that is developed, reviewed, and revised in
accordance with section 1414(d) of [the IDEA].” 20 U.S.C. §
1401(11). It must be “reasonably calculated to enable the child
to receive educational benefits,” Bd. of Educ. v . Rowley, 458
U.S. 176, 207 (1982), and “custom tailored to address the
[disabled] child’s ‘unique needs,’” Lenn v . Portland Sch. Comm.,
998 F.2d 1083, 1086 (1st Cir. 1993) (citing 20 U.S.C. § 1400(c)).
7 Importantly, however, neither the IDEA nor New Hampshire law
requires an IEP to “maximize” a child’s educational benefits.
See, e.g., Lenn, 998 F.2d at 1086 (holding that federal law does
not require that “the benefit conferred [by the IEP] reach the
highest attainable level or even the level needed to maximize the
child’s potential.”). Instead, the IDEA establishes more modest
goals and imposes on states and local school districts an
obligation to provide a program that is “sufficient to confer
some educational benefit upon the handicapped child.” Rowley,
458 U.S. at 200.
We therefore conclude that the “basic floor of opportunity” provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.
Id. at 201. Notwithstanding Michael’s parents’ assertions to the
contrary, see Parents’ Decision Memorandum (document n o . 43) at
2-3, Rowley remains good law and sets forth the standard by which
a School District’s compliance with the IDEA is measured. See,
e.g., L t . T.B. ex rel. N.B. v . Warwick Sch. Com., 361 F.3d 8 0 , 83
(1st Cir. 2004).
8 If a parent believes that a proposed IEP will not provide an
appropriate education, or that the procedures established by the
IDEA have not been properly followed in developing the IEP, he or
she may request an administrative due process hearing to review
the matter. See 20 U.S.C. § 1415(f). If a parent or the
affected school district is dissatisfied with the administrative
hearing officer’s ruling, that party may seek judicial review in
either state or federal court. 20 U.S.C. § 1415(i)(2).
The district court’s review of state educational
administrative proceedings has been described as “one of involved
oversight.” Lenn, 998 F.2d at 1087 (citing Roland M . v . Concord
Sch. Comm., 910 F.2d 983, 989 (1st Cir. 1990)). The applicable
standard is an intermediate one under which the district court
must exercise independent judgment, but, at the same time, accord
“due weight” to the administrative proceedings.
The required perscrutation must, at one and the same time, be thorough yet deferential, recognizing the expertise of the administrative agency, considering the agency’s findings carefully and endeavoring to respond to the hearing officer’s resolution of each material issue. Jurists are not trained, practicing educators. Thus, the statutory scheme binds trial courts to give ‘due weight’ to the state agency’s decision in order to
9 prevent judges from imposing their view of preferable educational methods upon the States.
Roland M., 910 F.2d at 989 (citations and internal punctuation
omitted). See also T.B. v . Warwick Sch. Comm., 361 F.3d at 83-
84.
District court review is focused on two questions: (1)
whether the parties complied with the procedural requirements of
the IDEA; and (2) whether the IEP developed through those
procedures was reasonably calculated to enable the disabled child
to receive educational benefits. See, e.g., Rowley, 458 U.S. at
206-07. The burden of proof rests with the party challenging the
administrative decision - here, Michael’s father. See Hampton
Sch. Dist. v . Dobrowolski, 976 F.2d 4 8 , 54 (1st Cir. 1992);
Roland M., 910 F.2d at 991.
Discussion
In his complaint, Michael’s father challenges the hearing
officer’s decision on eleven separate grounds. Amended complaint
(document n o . 28) at paras. 6(A) through 6 ( K ) . In his decision
10 memorandum, the father describes his challenges as falling into
three categories:
The Parents’ complaints can be group[ed] into three areas, failure to progress, school district action and the hearing officer’s action. The allegations are that the law requires a broad view of the areas to be measured for progress which was not done. Secondly, the school district’s procedural violations were contrary to the law, the State has a responsibility to monitor compliance with the law and the hearing officer an obligation to rule on them. Lastly, the hearing officer’s actions were prejudicial and affected the out come of the hearing.
Parent’s decision memorandum (document n o . 43) at 1 . As was the
case in Michael I , none of the father’s arguments has merit.
I. Alleged Procedural Errors.
The nature of the complaint regarding procedural errors is
not entirely clear. Michael’s father seems to suggest that the
hearing officer erred by concluding that not one of the alleged
procedural errors (even if credited as true) had any substantive
adverse impact on the parents’ ability to meaningfully
participate in the formulation (and monitoring) of Michael’s IEP,
without first determining whether the alleged procedural error(s)
actually occurred.
11 When a Due Process Hearing alleges procedural safeguards under IDEA, the hearings officer has a duty to determine first if they occurred and secondly, their impact. As violations brought and decided at a Due Process can not subsequently be brought under the State Agencies complaint mechanism, the Hearing Officer must determine if the violations are factual. In this case the Hearing Officer found no harm but often avoided a determination of violation.
Parent’s decision memorandum at 7 .
The argument seems to be based upon a misunderstanding of
the significance of procedural errors in the IDEA context. The
mere existence of a procedural error on the part of a school
district does not automatically entitle a parent or disabled
student to some form of relief; some procedural errors do not
result in any substantive harm.
Courts must strictly scrutinize IEPs to ensure their procedural integrity. Strictness, however, must be tempered by considerations of fairness and practicality: procedural flaws do not automatically render an IEP legally defective. Before an IEP is set aside, there must be 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.
12 Roland M., 910 F.2d at 994. Here, there is no evidence that any
of 18 alleged procedural errors identified by Michael’s father
compromised Michael’s right to an appropriate education,
seriously hampered his parents’ opportunity to participate in the
formulation or monitoring of his IEP, or deprived Michael of any
educational benefits.
II. Michael’s Alleged Failure to Progress.
With regard to the claim that Michael did not make adequate
educational progress during the academic year, his father says:
Mike’s grades would have been “F’s” if he did not produce multiple drafts at the direction of the special education teacher with exactly what needed to be done to make it better. The school was unable to successfully demonstrate evidence of progress. They used progress reports from the program provider to state that progress had been made, but no proof was offered. The school offered post [national standardized] testing as evidence, but when a service provider in an adversarial situation is also the examiner, this is usually viewed as biased testing and borders on unethical. The school provided report card grades, but it was made clear at this Due Process that most if not all of Michael’s work was completed with prompting, teacher input, and great efforts on Mrs. Lambert’s part to make sure the grades were good. Mike did not earn these grades independently and therefor[e] [they] are not a good reflection of the progress he made.
13 Parent’s decision memorandum at 6. Of course, the fact that
Michael did not progress at the rate expected by his parents is
not evidence that he failed to make adequate educational
progress. Nor is it evidence of the School District’s failure to
properly implement Michael’s IEP. Michael is a special needs
student with an IEP; it i s , therefore, not surprising that his
work is reviewed by his teachers, nor is it unusual (or
inappropriate) that he is given special instruction and direction
aimed at improving his academic work.
The record in this case demonstrates that Michael made
adequate educational progress during the 2001-2002 academic year.
Indeed, he did quite well, given that: (1) he was enrolled in
more courses than the School District recommended (two of which
were honors-level courses); (2) one of his courses involved the
study of a foreign language, which is generally not recommended
for students at Michael’s grade level; and (3) his participation
on the ski team during the winter caused him to be absent from
school far more often than was probably appropriate for a special
needs student.
14 Further complicating the School District’s efforts to
provide Michael with a free appropriate public education was the
parents’ resistance to assuming an active role at home in
monitoring Michael’s school work and prompting him to do his
homework. See, e.g., 2001-2002 IEP at 9 (“The parents request
that the struggles and frustrations accompanying Michael’s work
are to be kept between [him] and the school. The family is to be
provided information but is not to be put in the middle.”);
Hearings Officer’s Decision at 14 (“The evidence shows that
Parents demanded that they not be meaningful participants in
enforcing homework production efforts.”). See also Testimony of
Michael’s mother, Day Two of Due Process Hearing, transcript at
198-200. The parents also opposed providing the School District
with meaningful authority to enforce Michael’s responsibilities
under the IEP by, for example, strictly prohibiting the School
District from reducing or eliminating Michael’s participation on
the ski team if he failed to do his homework.
Little more need be said about the assertion that Michael
did not make adequate educational progress. The record evidence
overwhelming contradicts that claim. While Michael may not have
15 advanced as quickly or as far as his parents would have liked,
that is not the standard by which his educational progress is
measured under the IDEA. Here, the record reveals that,
notwithstanding a decidedly adversarial posture adopted by the
parents - particularly Michael’s father (the record, for example,
contains suggestions that Michael’s father made efforts to have
two special educators fired, filed a defamation suit against some
School District employees, and filed a discrimination claim
against the School District with the U.S. Department of
Education, Office for Civil Rights) - the School District still
devoted substantial time, effort, and resources to ensure that
Michael’s IEP was properly implemented, and that he made adequate
educational progress. It was and he did.
III. Alleged Factual Errors Made by the Hearing Officer.
Finally, Michael’s father takes issue with several factual
findings and/or statements made by the hearing officer in his
written decision, claiming that they are inaccurate and indicate
a bias on the part of the hearing officer. The court disagrees.
16 To be sure, the hearing officer’s written decision i s , in
places, directly critical of Michael’s parents.1 That criticism
i s , however, supported by the record. S o , for example, in
describing the substance of the evidence presented by Michael’s
father, and the manner in which it was presented, the hearing
officer made the following observation:
Parents’ case consisted of cross-examination of District witnesses on aspects of Student’s 2001-2002 school year and argument. The cross-examination did not reveal deficiencies in the educational program. Cross-examination exposed the barriers and difficulties posed by Father’s active opposition to the District’s efforts to provide Student a FAPE so he could make appropriate educational progress. Father’s priority based on the evidence presented, was to actively oppose the District effort to constructively engage in a joint effort to appropriately educate Student.
1 For example, Michael’s father takes issue with the hearing officer’s description of the School District’s effort to schedule meetings with the parents and accommodate their schedule as “herculean.” Decision at 4 . He also claims the hearing officer “discounted” the testimony given by Michael’s mother by noting that “parent’s presented no independent analysis of Student’s progress.” Presumably, by using the word “independent,” the hearing officer meant a neutral, impartial party not related to Michael; that comment does not reflect any bias against Michael’s mother. Additionally, Michael’s father points out that the hearing officer noted that “there was no appeal of the decision in [the prior due process hearing],” when the parents had, in fact, appealed. Importantly, however, the hearing officer attributed that statement to Michael’s father (“Parent stated during the current due process hearing that there was no appeal of the decision in [the prior due process hearing].”).
17 Father’s testimony indicated that he had the School District representative served with a Complaint in the U.S. District Court for the District of New Hampshire. Father offered no explanation for any constructive purpose in sending a Complaint to School District staff, while not filing the same with the Clerk. A reasonable assumption in the context of the other facts of this case would b e , solely bad faith. . . . Except for the volume of written material generated by Father in the exhibits, Father’s involvement with the IEP team, by testimony of District witnesses, appears to have been reasonably calculated to be as nonproductive as possible.
Hearing Officer Decision at 15-16. The hearing officer’s
decision is unmistakably critical of Michael’s father, but with
apparent good cause. His expressed view of the father’s behavior
is grounded in his reasonable and rational interpretation of both
the testimonial and written evidence before him. That
interpretation of the evidence does not demonstrate “bias”
against Michael’s father, but merely the reality permeating this
parent’s energetic but inexplicable quest for something plainly
not available under the IDEA.
The hearing officer’s critical tone i s , no doubt, rooted in
his familiarity with the School District’s efforts to educate
Michael (the same hearing officer presided over the parents’
18 earlier due process hearings) and a legitimate sense of
frustration arising from the parents’ apparent refusal to work
cooperatively with the School District to establish (and achieve)
reasonable goals for Michael, as well as the father’s well-
documented adversarial behavior and litigiousness.
There is no evidence that the hearing officer was anything
but impartial in considering this matter and nothing in the
record suggests he was biased against either of the parents o r ,
more importantly, Michael. If anything, the record discloses a
hearing officer who considered the evidence and issues in a
professional manner, and with great patience under trying
circumstances. The record evidence more than adequately supports
the hearing officer’s conclusion that, during the 2001-2002
academic year, Michael’s IEP was properly implemented and he made
adequate educational progress.
19 Conclusion
Under the Supreme Court’s decision in Rowley, the “IDEA does
not require a public school to provide what is best for a special
needs child, only that it provide an IEP that is ‘reasonably
calculated’ to provide an ‘appropriate’ education as defined in
federal and state law.” T.B. v . Warwick Sch. Comm., 361 F.3d at
83 (citations omitted). Consequently, the IDEA does not impose
upon the School District the obligation to devise the best
possible IEP for Michael, nor does it require the School District
to flawlessly implement Michael’s IEP, nor does it require the
School District to provide what the parents might consider an
ideal education.
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.
Lenn, 998 F.2d at 1086.
20 Michael’s parents are, no doubt, motivated by what they
believe is best for Michael. And, perhaps Michael’s father
believes that by adopting an aggressively confrontational
approach to the School District he might eventually force the
School District to capitulate to his demand that Michael be
placed in a private school (previously, the parents expressed a
desire to place Michael in Waterville Valley Academy, a well-
known ski school that provides students with tutoring on academic
subjects while stressing advancement in skiing skills, and, more
recently, they sought to have him placed at the New Hampton
School or the Holderness School, private preparatory schools to
which Michael was admitted). It i s , of course, impossible to
know for certain. But, it is clear from the record that
Michael’s parents have made it very difficult (and expensive) for
the School District to honor its reasonable obligations to
Michael under the IDEA. The District has, nevertheless, done s o ,
and should be commended.
For the foregoing reasons, as well as those set forth in the
School District’s Decision Memorandum (document n o . 42) and its
Reply Memorandum (document n o . 4 5 ) , the decision of the hearing
21 officer dated July 2 2 , 2002, is affirmed in all respects. The
School District is the prevailing party. Each party shall bear
its own costs and expenses. The Clerk of Court shall enter
judgment in favor of the School District and close the case.
SO ORDERED.
Steven J. McAuliffe United States District Judge
August 3 1 , 2004
cc: Michael D. M., pro se Diane M . Garrow, Esq.