Michael M. v. Plymouth School CV-01-469-M 04/12/04 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Michael M. , by and through his parents and next friends, M.D. and M.A., Plaintiff
v. Civil No. 01-469-M Opinion No. 2004 DNH 064 Plymouth School District, Defendant
O R D E R
This is one of three federal cases in which Michael M., by
his parents, appeals an educational hearing officer's decision in
favor of the local school district. See 20 U.S.C. § 1415(1) (2) .
See also Michael M. v. Pemi-Baker Regional Sch. Dist., No. Di
li 4-SM (D.N.H.); Michael M. v. Pemi-Baker Regional Sch. Dist.,
No. 02-541-SM (D.N.H.). Currently before the court are the
parties' respective decision memoranda and statements of material
facts. Neither party reguested a hearing to present oral
argument or additional evidence, nor has either party sought to
supplement its written submissions. See Order dated January 14,
2003 (document no. 37) (affording the parties the opportunity to
amend and/or supplement their filings). The matter is, then,
ready for resolution. Background
Michael M. was born on June 8, 1987, and at all times
relevant to this proceeding was a student in the Plymouth School
District. 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 grades appear to be A's and B's. He plans to
attend college and has expressed interest in becoming a lawyer -
goals that at least one of his examining doctors (Dr. Sarah
Brophy) considers well within his reach. And, he recently
applied for, and was granted, admission into two private
preparatory schools - New Hampton School and Holderness School.
He does, however, have learning disabilities. Specifically, 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, because of
poor fine motor skills, and deficits in expressing his ideas in
written form, resulting in a coding of "Learning Disabled."
Because of his disabilities, he has been receiving special
educational services from the School District for several years.
2 In August of 2000, Michael was evaluated by Albert
Whetstone, Ph.D. Over the course of nearly three hours. Dr.
Whetstone administered a number of tests. Overall, Michael
performed extremely well in nearly all areas. He did, however,
test below average in areas involving "contextual conventions"
and "sentence combining." Dr. Whetstone summarized Michael's
weaknesses as follows:
Assessed at a one year lag in spelling[,] although his skills were compromised in part by his difficulty with fine-motor control of his pencil[,] and in part by his hurried style of writing. Mike tended to write longer words correctly and to leave off the endings of shorter words!
Compromised in his ability to express his creative ideas using conventional grammar and punctuation, e.g., capitalization, guestions marks, guotation marks, paragraph organization.
Confidential Educational Evaluation of Michael at 4. An
evaluation performed by Sarah Brophy, Ph.D., in May of 2001,
yielded similar conclusions.
In June of 2001, Michael's parents made three separate
reguests for due process hearings. One of the issues they raised
- a demand that the School District switch Michael's primary and
3 secondary codes - was resolved by the School District almost
immediately, at the first pre-hearing conference. The remaining
two reguests for due process hearings (which involved challenges
to Michael's IEP and his placement in Plymouth High School,
rather than either of two private preparatory schools to which he
had been admitted) were addressed at a single administrative due
process hearing. Over the course of three days, the parties
presented evidence to a hearing officer, with the School District
calling ten witnesses, and Michael's parents calling two
witnesses (Dr. Brophy and Michael's mother).
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
appropriate public education that emphasizes special education
and related services designed to meet their unique needs and
prepare them for employment and independent living." 2 0 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
4 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)).
Importantly, however, neither the IDEA nor New Hampshire law
requires the 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 imposes on states and
local school districts an obligation to provide a program that is
5 "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 2 01.
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 reguest 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(1) (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
6 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 reguired 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 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 80, 83-
84 (1st Cir. 2 004).
District court review is focused on two guestions: (1)
whether the parties complied with the procedural reguirements 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 and his parents. See
7 Hampton Sch. Dist. v. Dobrowolski, 976 F.2d 48, 54 (1st Cir.
1992); Roland M. , 910 F.2d at 991.
Discussion
In their complaint, Michael and his parents challenge the
hearing officer's decision on fourteen separate grounds.
Complaint (document no. 1) at paras. 8 and 9(A)-9(M). Those
challenges fall into three categories: substantive challenges;
technical/procedural challenges; and challenges to the weight of
the evidence. In their decision memorandum (document no. 20),
plaintiffs combine their substantive challenges to the hearing
officer's decision with their arguments concerning the weight he
ascribed to the testimony of various witnesses. Accordingly, the
court will do the same.
I. Technical/Procedural Challenges.
At the due process hearing, plaintiffs accused the School
District of 71 discrete procedural violations. After hearing
testimony from plaintiffs' two witnesses (neither of whom
testified as to any adverse impact upon Michael's IEP caused by
the alleged procedural violations), the hearing officer ruled in favor of the School District. Here, plaintiffs assert that the
hearing officer erred by ruling that two documents they submitted
on the subject of the School District's alleged procedural
violations (an objection and an affidavit) were not signed under
oath. Complaint, paras. 9(D) and 9(E). Those claims can be
guickly dispatched.
First, while the hearing officer concluded that the
documents submitted by plaintiffs were not properly signed under
oath, he did consider them as argument. Moreover, plaintiffs
have failed to point to any evidence suggesting that they were
prejudiced in the slightest by the alleged errors, nor have
plaintiffs shown that those alleged errors adversely affected the
hearing officer's ultimate decision. Finally, and perhaps most
importantly, plaintiffs have failed to demonstrate that any of
the 71 procedural errors they identified at the due process
hearing (and as to which the hearing officer ruled in favor of
the School District) "compromised [Michael'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., 910 F.2d at 994. Consequently, the alleged errors identified by plaintiffs,
even if real, cannot support granting the relief they seek.
II. Substantive Challenges.
On a more substantive level, plaintiffs raise the following
five challenges to the hearing officer's decision:
1. The hearing officer erred when he ruled that the School District was not required to seek a due process hearing when Michael's father, acting on behalf of Michael, refused special education services in 1998, 1999, 2000 (opting, instead, to address Michael's special needs through a Section 504 plan). Complaint, para. 9(A).
2. The hearing officer erred when he ruled that the School District provided a free appropriate education for Michael during the years 1998, 1999, 2000, and 2001. Complaint, para. 9(G).
3. The hearing officer erred when he ruled that the School District provided Michael with an appropriate educational placement for 2001- 2002. Complaint, para. 9(C).
4. The hearing officer erred when he ruled that Michael made adequate educational progress. Complaint, para. 9(B).
10 5. The Hearing Officer erred when he concluded that the School District was the "prevailing party." See Complaint, para. 8.1
None of those challenges is sufficiently supported by the record
to warrant reversing (in whole or in part) the decision of the
hearing officer.
As to plaintiffs' assertion that the School District should
have challenged their own parental decision to refuse special
services for Michael for the years 1998 through 2000 (by seeking
a due process hearing) , the hearing officer's adverse ruling is
well supported. In short, the record reveals that Michael's
parents made that decision knowingly and intelligently. As the
hearing officer pointed out, it is difficult to conclude
otherwise, given the extensive understanding of the process
possessed by Michael's mother (a certified special educator
formerly employed by the School District to oversee compliance
with state and federal special education laws), as well as
Michael's academic progress during those years under the 504
plans provided to him (as revealed by his overall progress on
1 That plaintiffs challenge the hearing officer's determination that they were not the "prevailing party" is also implicit in their reguests for attorney's fees.
11 standardized testing, as well as the fact that he succeed in
achieving the necessary skills to graduate from grade to grade in
each of those years). As the hearing officer concluded:
The facts of this case indicate that the District has acted reasonably in following its obligations to Parents and Student in not reguesting a hearing on the refusal of services. This is because the facts reasonably show Student capable of and ma[k]ing educational progress from 1998 to 2001. The effort to restart special education services after Father's reguest in the spring, 2001, was also reasonable. It would be a different case if Mother were not a special educator and Student's difficulties more pervasive. On the facts of this case, the decision not to appeal Parents' refusal of special education services is not an issue.
Hearing Officer's Decision at 23.
Next, plaintiffs say that the hearing officer erred in
concluding that the School District provided Michael with a free
appropriate education from 1998 through 2001. Again, however,
their claim is not supported by the record. Michael's test
scores reveal that, overall, he made academic progress during
those years. And, as noted above, he successfully mastered the
academic skills necessary to progress from grade to grade. While
he may not have reached the high level of performance that his
12 parents expected, the School District is not required to provide
special education services designed to maximize Michael's
potential. Rather, it must deliver services that provide an
educational benefit. As the court of appeals for this circuit
has observed:
Since Rowley's construction of the ERA, a [free appropriate public education or "FADE"] has been defined as one guaranteeing a reasonable probability of educational benefits with sufficient supportive services at public expense. Following Rowley, courts have concluded that a FADE 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. Barring higher state standards for the handicapped, a FAPE is simply one which fulfills the minimum federal statutory requirements.
G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 948-49 (1st Cir.
1991) (emphasis in original). See also T.B. v. Warwick Sch.
Comm., 361 F.3d at 83 ("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.")
(citation and internal punctuation omitted); Walczak v. Florida
Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998) ("IDEA
does not require states to develop IFPs that maximize the
13 potential of handicapped children. What the statute guarantees
is an ’ 'appropriate' education, not one that provides everything
that might be thought desirable by loving parents.") (citations
and internal guotation marks omitted). During the years in
guestion, the School District fully met its legal obligations to
Michael and provided him with a free appropriate public
education.
Plaintiffs' assertion that the hearing officer erred in
concluding that the School District provided Michael with an
appropriate educational placement for the 2001-2002 school year
is also insufficiently supported by the record to warrant
disturbing the hearing officer's decision. While Michael's
mother expressed a preference for placing him at Holderness
School (which she acknowledged lacks any special education
teachers), plaintiffs failed to demonstrate that the hearing
officer erred in concluding that the placement recommended by the
School District was appropriate. Similarly, the hearing
officer's conclusion that Michael made adeguate educational
progress is fully supported by the record. Plaintiffs have
failed to demonstrate otherwise.
14 Finally, as to their claim that the hearing officer erred
when he concluded that the School District was the prevailing
party, plaintiffs have failed to carry their burden of proof. In
support of their position, plaintiffs say: (1) they "prevailed"
in having the School District switch Michael's primary and
secondary coding; and (2) the final IEP which was found
appropriate by the hearing officer actually incorporated many of
the changes reguested by plaintiffs.
To properly be viewed as the "prevailing party," plaintiffs
must demonstrate that there has been some judicially sanctioned
material "alteration in the legal relationship of the parties."
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health &
Human Res., 532 U.S. 598, 605 (2001). See also Doe v. Boston
Public Schs, 358 F.3d 20 (1st Cir. 2004) (applying the Buckhannon
prevailing party analysis in the context of a reguest for
attorney's fees under the IDEA). As explained in Buckhannon,
only "enforceable judgments on the merits and court-ordered
consent decrees create the material alteration of the legal
relationship of the parties necessary to permit an award of
attorney's fees." Id at 604.
15 In this case, neither of the two issues as to which
plaintiffs claim prevailing party status was resolved by a
judgment on the merits or a court-ordered consent decree.
Instead, plaintiff's "prevailed" on those issues only because,
prior to the due process hearing that they reguested, the School
District voluntarily agreed to adopt some of the changes
plaintiffs proposed with regard to Michael's coding and IEP.
As to the coding issue, the fact that the School District
agreed to switch Michael's primary and secondary coding (i.e.,
consider his secondary code his primary code, and vice versa) did
not result in any meaningful modification of his IEP. The School
District had, all along, acknowledged Michael's disabilities and
designed an appropriate program to ensure that he received
educational benefits. That the School District cooperatively
acguiesced to plaintiffs' inconseguential reguest that Michael's
codes be switched (which had no substantive effect on Michael's
IEP) does not, standing alone, vest plaintiffs with prevailing
party status. See generally J.W. v. Contoocook Valley Sch.
Dist., 154 F. Supp. 2d 217, 227-29 (D.N.H. 2001) .
16 With regard to their claim that they were the prevailing
party because the School District agreed to incorporate some of
their recommendations into Michael's IEP, plaintiffs are
mistaken. Prior to their reguest for a due process hearing,
plaintiffs had not provided the School District with any
suggested modifications to Michael's IEP; instead, they simply
challenged the IEP proposed by the School District. Accordingly,
at the first pre-hearing conference, the hearing officer asked
them to submit a proposed IEP, with changes they believed were
appropriate. They did so and the School District accepted some
of those proposals and incorporated them into the final IEP.
Importantly, however, there is no indication that, had plaintiffs
submitted those proposed changes to the School District before
seeking a due process hearing, they would have been rejected.
Instead, the record reveals that the School District gave due
consideration to plaintiffs' proposals and incorporated those
which it deemed appropriate - without the need for judicial
intervention. Under those circumstances, plaintiffs cannot be
deemed the "prevailing party" for attorney's fee purposes, as
that phrase has been defined by the Supreme Court and applied by
the court of appeals for this circuit. C f . Kathleen H. v. Mass.
17 Pep't of Educ., 154 F.3d 8, 15 (1st Cir. 1998) ("Even where a
defendant makes some changes following administrative proceedings
that comport with a plaintiff's demands, if the actions are taken
unilaterally by the defendant and there is no indication that
they would not have transpired had the plaintiff not pursued the
administrative process, the plaintiff cannot gualify as a
'prevailing party' for fee-shifting purposes.") (guoting Payne v.
B d . of E d ., 88 F.3d 392, 400 (6th Cir. 1996)).
Parenthetically, the goals of the IDEA would not be advanced
if, when presented with a school district's proposed IEP, parents
were free to simply remain silent, seek to resolve any
disagreements that they have in the context of a due process
hearing, and then claim prevailing party status (and obtain an
award of attorney's fees) as to issues that easily could have
been resolved guickly and informally by making their concerns
known to the school district. In this case, plaintiffs might
have had a more compelling argument if they had notified the
School District of their proposed changes to Michael's IEP prior
to seeking a due process hearing and if the School District had
rejected those proposals, thereby compelling plaintiffs to seek
18 administrative review. That, however, did not occur and, under
the circumstances presented, plaintiffs are not entitled to an
award of attorney's fees.
Conclusion
Although their relationship with the School District appears
to have been unnecessarily confrontational, Michael's parents
cannot be faulted for seeking the maximum level of educational
services available for their son, in what they perceive to be the
best available environment. Nor, however, can the School
District be faulted for the level of services that it has
provided to Michael over the years (through both its section 504
programs and Michael's lEPs). And, of course, parents must
assume responsibility at home for making certain that their
children make educational progress by, for example, ensuring that
homework is done on time, that participation in extra-curricular
activities does not interfere with or compromise academic work,
etc.
While some might argue that the services that the School
District provides to Michael are not sufficient to maximize his
19 educational potential, neither the IDEA nor New Hampshire law
requires the School District to provide an "optimal" educational
environment. Rather, the School District is obligated to offer
Michael a learning environment and educational plan that provides
demonstrable "educational benefit." Under the facts presented in
this case, the School District has certainly met its legal
obligations to Michael.
Although Michael's parents obviously disagree, having
expressed a preference for placing Michael in Waterville Valley
Academy (a ski school that provides students with tutoring on
academic subjects) or, more recently, the New Hampton School or
Holderness, the School District is not required to fund Michael's
placement in a private school. Michael's parents are, obviously,
free to enroll him in a private school but, because the School
District has demonstrated that Michael has made adequate
educational progress during the years in question and that his
special needs can be appropriately addressed through his current
IEP and placement, it need not bear the substantial additional
expense associated with a private preparatory school education.
20 Plaintiffs have failed to carry their burden of proof with
regard to any of the alleged deficiencies they have identified in
the hearing officer's decision. Accordingly, the decision of the
hearing officer, dated August 20, 2001, is affirmed. The School
District's Motion to Strike Parents' Reply Memorandum (document
no. 24) is denied. 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
April 12, 2 004
cc: Diane M. Gorrow, Esg. Margaret A. Maroni Michael D. Maroni