NICOLE JOHNSON, Pаrent; NS, Minor, Plaintiffs, Appellants, v. BOSTON PUBLIC SCHOOLS; BUREAU OF SPECIAL EDUCATION APPEALS, Defendants, Appellees, EILEEN NASH; LYNN GRAHAM O‘BRIEN; JOAN CURRAN; LITA O‘MALLEY; JEREMIAH FORD; MARCIE GOLDOWSKI; ELIZABETH DRAKE; REBECCA HART; TERELLE CLARK; SUE GIBBONS; JENNIFER HARRIS; DENISE ENG; CHILDREN‘S HOSPITAL; MELISSA BROWN; THOMAS CHANG, Superintendent of Schools for the City of Boston; ANDREA ALVES-THOMPSON; ANN MARIA ACCOMANDO, Defendants.
No. 16-2122
United States Court of Appeals For the First Circuit
October 12, 2018
Before Lynch, Stahl, and Thompson, Circuit Judges.
[Hon. Allison D. Burroughs, U.S. District Judge]
Michael C. Walsh, on brief for appellants.
Eugene L. O‘Flaherty, Corporation Counsel, with whom Karen G. Castrada, Assistant Corporation Counsel, on brief for appellee Boston Public Schools.
I. Statutory Framework and Factual Background
A.
We begin by describing the statutory framework of the IDEA, which provides necessary context for understanding the factual and procedural history at issue. The IDEA offers states partial federal funding for special education of children with qualifying disabilities.
“The primary vehicle for delivery of a FAPE” is an Individualized Education Program (“IEP“). Id. (internal quotation marks and citations omitted). “An IEP must be custom-tailored to suit a particular child,” Sebastian M., 685 F.3d at 84 (citation omitted), and must be “reasonably calculated to enable a child to make progress appropriate in light of the child‘s circumstances,” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017). An IEP need not, however, offer the student “an optimal or an ideal level of educational benefit[.]” Lessard v. Wilton Lyndeborough Coop. Sch. Dist. (Lessard I), 518 F.3d 18, 23-24 (1st Cir. 2008) (citations omitted).
While the IDEA envisions a process in which parents, educators, specialists, and others collaborate to develop the IEP, it also contains dispute resolution mechanisms for parents who are
Finally, parents may bring a civil action challenging the outcome of the due process hearing in either state or federal court.
B.
What follows is the factual and procedural history of the case “as supportably found by the district court,” Sebastian M., 685 F.3d at 82, focusing on the facts necessary to adjudicate this appeal.2
Johnson is the mother of N.S., a young male afflicted with significant deafness. Although N.S. has a cochlear implant to assist with his hearing, nonetheless his hearing remains
Beginning at age three and continuing for roughly two-and-a-half years, N.S. attended the Horace Mann School for the Deaf (“Horace Mann“), a public school in the BPS system. Several evaluations conducted near the time that N.S. initially enrolled at Horace Mann concluded that N.S.‘s language skills were “significantly delayed” for his age. Onе of these reports noted that N.S. did not use words or word approximations or demonstrate signs of understanding spoken language, and placed his language abilities “at the 20 to 21 month level.” Two of the evaluations recommended instruction that incorporated both American Sign Language (“ASL“)3 and spoken communication.
N.S.‘s IEP team first met in October 2011 to devise a plan for the 2011-12 school year. The resulting plan called for N.S. to be placed in a “substantially separate classroom . . . taught by a teacher for the deaf,” and for instruction using both ASL and spoken English. Pursuant to Johnson‘s wishes, the goal of the IEP was for N.S. “to be mainstreamed . . . [,] preferably in a parochial school.”
N.S.‘s teachers and treating therapists reported that he made additional progress during the 2012-13 school year, including “spontaneously signing” some words, naming classmates and teachers in sign language, imitating words in sign, and attempting tо approximate speech. Around the same time, clinicians at Boston Children‘s Hospital similarly observed that N.S. was beginning to express himself through signing, though he was “not yet speaking with clearly articulated speech,” and scored N.S.‘s receptive language skills at the two-year, two-month-old level. The Children‘s Hospital report urged continued use of “a combination
Despite this reported progress, Johnson informed the IEP team that she wished to limit N.S.‘s instruction to sign-supported spoken English—excluding ASL instruction—as N.S.‘s family did not use sign language at home. Although expressing concern about the request, in April of 2013 the IEP team modified the 2012-13 IEP to reflect Johnson‘s preference.
While progress reports for the period between January and June 2013 indicate that N.S.‘s ability to communicate continued to improve, his progress was slow and the IEP team recommended that N.S. repeat kindergarten. Johnson rejected this recommendation, instead requesting that N.S. be promoted and placed in a class without “peers who used ASL or who had [] disabilities” other than hearing impairment. The administrative record indicates that Horace Mann expressed concern that it “did not have a class that met [Johnson‘s] demands.”
In June 2013, N.S. lost his speech processor, a component of his cochlear implant that assists with processing sound, and it was not replaced for five months. Evaluations prior to, during, and after that period note N.S.‘s inconsistent use of the device and stressed the importance to his linguistic development of using the processor regularly.
N.S. underwent an unscheduled speech and language evaluation in October 2013 to address Johnson‘s continuing concerns that N.S.‘s spoken English skills were not advancing at a sufficient rate. This evaluation included a comparison of N.S.‘s receptive and expressive language abilities using both spoken English only and sign-supported spoken English. The receptive language assessments in particular found that, when using sign-supported English, “given the use of single word signs, [N.S.‘s] ability to understand vocabulary words [was] similar to that of same aged, hearing peers.” Using sign-supported spoken English, he also apparently demonstrated some ability to understand negatives in sentences, make inferences, understand the use of objects, and follow commands without the use of gestural cues, and to understand some higher level academic skills. In contrast, during the spoken English assessment, N.S.‘s correct
Following the unscheduled evaluation, N.S.‘s IEP team offered to amend the IEP to provide, inter alia, additional language therapy and other “direct services” while keeping N.S. at Horace Mann. Johnson rejected this proposal and, separately, proceeding pro se sought a hearing before the BSEA to challenge the 2013-14 IEP. Johnson sought out-of-district placement in a program focused solely on spoken English and reiterated her position that Horace Mann had inappropriately placed N.S. in classes with students with disabilities other than hearing loss. BSEA initially scheduled a hearing for November 2013, but postponed the hearing on several occasions.
In December 2013, progress reports from Horace Mann indicated that N.S.‘s language skills improved in a number of
Tensions between Johnson and Horace Mann expanded beyond disagreements regarding N.S.‘s educational program. Following her February 2014 altercation with the vice principal, Johnson ceased sending N.S. to Horace Mann and eventually withdrew him from the school altogether. Thereafter, Johnson obtained an itinerant student number for N.S., allowing him to continue to receive services “consistent with his IEP.”4 Johnson, 201 F. Supp. 3d at 196.
At Johnson‘s request, the Clarke School for Hearing and Speech (“Clarke“) performed an independent evaluation of N.S. in March 2014. That assessment indicatеd that N.S.‘s performance was “consistent with a child who was just implanted” with a cochlear device, and concluded that his “present level of language [was] . . . insufficient to allow for adequate academic development.” The
In May 2014, N.S.‘s IEP team amended its proposed plan in response to the Clarke evaluation, increasing the therapy and training already provided to N.S. and honoring Johnson‘s request to place N.S. in a classroom in which spoken English would be the primary language of instruction. BPS also funded auditory, speech, and language services to compensate for those missed between N.S.‘s departure from Horace Mann and the end of the 2013-14 school year. Johnson, dissatisfied with BPS‘s offer, amended her BSEA hearing request to include a claim for compensatory services and other monetary damages.
C.
Beginning in June 2014, Johnson and BPS attempted to resolve their dispute regarding (1) N.S.‘s educational placement; and (2) compensatory services beyond those already agreed to by BPS. As part of these negotiations, BPS provided Johnson with information on programs available at Clarke and the READS Collaborative (“READS“). READS was described by the district court as “a private school . . . offer[ing] an educational program for children with hearing disabilities.” Johnson, 201 F. Supp. 3d at 197 n.2.
On October 16, 2014, Johnson and BPS participated in a prehearing telephone conference with the BSEA, during which the parties attempted to negotiate a settlement in the presence of the hearing officer. BPS stated that it would only agree to a settlement that resolved both the placement and compensatory services claims, and the parties appeared to reach such an agreement during that call. The following day, however, Johnson informed BPS that she agreed to the placement proposal (which would leave N.S. at READS) but not the proposed compensation settlement. BPS promptly withdrew its offer to fund N.S.‘s placement at READS.5
The BSEA hearing took place from November 17-19, 2014, and included extensive testimony and exhibits. On January 2, 2015, the hearing officer issued her decision, concluding that the
proposed 2013-14 and 2014-156 IEPs offered [N.S.] a FAPE, and that [N.S.‘s] progress during the two and a half years in [BPS] was effective given: the interruptions in services caused by [Johnson], problems with [N.S.‘s] devices which caused him to spend lengthy periods without access to sound;
methodological limitations which impacted [N.S.‘s] ability to acquire language; and the lack of effective access to language/communication in the home due to [Johnson‘s] belief that hearing sound without the ability to understand language was sufficient for N.S. to acquire language and learn to speak. Placement at READS, although appropriate, was unnecessary and largely duplicative of the program and services offered [to N.S.] at the Horace Mann School.
Notably for purposes of this appeal, the hearing officer also concluded that Johnson‘s credibility as a witness had been “seriously compromised” by her conduct during settlement negotiations.7 The hearing officer also noted Johnson‘s “admitted bias against public schools” and related preference for parochial schools.
Thereafter, Johnson, proceeding pro se, commenced a civil action challenging the hearing officer‘s decision in the United States District Court for the District of Massachusetts. See
In support of her attack on the adequacy of the IEPs, Johnson introduced additional records, specifically N.S.‘s 2015 progress reports from READS and select medical records from 2015.
BPS moved for summary judgment on the IDEA claims, and the BSEA subsequently joined that motion. The district court granted the motion and affirmed the BSEA‘s decision. This appeal followed.
II. Discussion
Johnson raises a number of arguments on appeal. First, she contends that the district court erroneously concluded that she waived her argument that N.S. should be “mainstreamed” by failing to raise “mainstreaming” before the BSEA. Second, Johnson claims that the hearing officer‘s evaluation of her credibility included consideration of impermissible facts and evidenced bias against her. Finally, Johnson argues that the evaluation by both the district court and hearing officer of N.S.‘s educational progress and the sufficiency of the challenged IEPs does not comport with the standard announced by the Supreme Court‘s decision in Endrew F., 137 S. Ct. 988.9 We consider each of these claims in turn.
A.
District courts considering challenges to administrative IDEA decisions apply an intermediate standard of review that we have called “involved oversight.” D.B., 675 F.3d at 36. Under that standard,
[a] district court reviews the administrative record, which may be supplemented by additional evidence from the parties, and makes an independent ruling based on the preponderance of the evidence. However, that independence is tempered by the requirement that the court give due weight to the hearing officer‘s findings. As a result, a district cоurt‘s review falls somewhere between the highly deferential clear-error standard and the non-deferential de novo standard.
This court, however, applies a “more traditional” standard of review to its evaluation of the district court‘s decision. Id. at 36. We review the district court‘s determinations of law de novo, and its findings of fact for clear error. Doe v. Cape Elizabeth Sch. Dist., 832 F.3d 69, 76 (1st Cir. 2016). “Where the case raises mixed questions of law and fact, we employ a ‘degree-of-deference continuum,’ providing ‘non-deferential plenary review for law-dominated questions’ and ‘deferential review for fact-dominated questions.‘”10 Id. at 76-77 (quoting Mr. I ex rel. L.I. v. Me. Sch. Admin. Dist. No. 55, 480 F.3d 1, 10 (1st Cir. 2007)).
The majority of Johnson‘s challenges raise only questions of law. Her final claim of error, however, includes both a pure question of law, i.e. whether the district court applied the proper standard in evaluating N.S.‘s educational progress, and a mixed question of law and fact, i.e. whether,
B.
Johnson first argues that the BSEA hearing officer overlooked her argument that N.S. should be “mainstreamed.” In IDEA parlance, “mainstreaming” refers to the law‘s directive that states must ensure that disabled students are educated in the “least restrictive environment,” and particularly that “[t]o the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled . . . .”
While conceding that she never used the word “mainstreaming” before the hearing officer, Johnson contends that she implicitly “raised this point in argument and laid the factual predicates onto the record.” She emphasizes several statements in her written “closing argument” to the BSEA, such as her statement that “so many students with disabilities like [N.S.] are placed unnecessarily in segregated settings like Horace Mann and [] so few [students] were included with [] typically developing peers.” She also points to repeated arguments in that document that N.S. should be educated with an appropriate “peer group,” and asks
In our view, Johnson‘s contention that these statements demonstrate her pursuit of a “mainstreaming” argument is belied by context. Viewed in isolation, phrases like those quoted above might indeed suggest that N.S. should be placed in a class with “children who are not disabled.” It is evident, however, that this was not the thrust of Johnson‘s argument before the hearing officer; rather, she sought out-of-district placement for N.S. with other, similarly disabled students. Her “closing argument” itself makes this clear: following the language quoted above, Johnson urges the conclusion that the READS Collaborative “provid[es] the ‘Least Restrictive Environment‘” and an appropriate peer group of hearing-impaired students. In other words, Johnson‘s use of those phrases was not directed at encouraging the BSEA to “mainstream” N.S. into a classroom with hearing students, but only to contrast the student body at READS with that at Horace Mann, which she claimed included students with disabilities other than hearing impairment. This understanding accords with the rest of the record: while Johnson consistently sought placement for N.S. at specialized schools for the hearing-impaired, we find no indication that she ever sought to have him placed with his hearing peers.
C.
Johnson next levels a series of claims based on the conduct of the hearing itself. We examine these in turn.
i.
Johnson raises a number of challenges to the hearing officer‘s decision, insisting that the hearing officer impermissibly relied on statements Johnson made at the prehearing conference. Johnson also maintains that the hearing officer demonstrated bias against her by stating at that hearing that Johnson‘s decision to proceed was a gamble and that she should seriously consider settlement, and that the hearing officer should have recused herself due to that bias.
Johnson first contends that
Johnson next argues that these negotiations were protected by the IDEA‘s exclusion of evidence of “[d]iscussions that оccur during the mediation process[.]”
Lastly, Johnson argues that consideration of these unsworn statements demonstrates impermissible bias and prejudging of facts by the hearing officer. We disagree. At the outset, we do not view the credibility determination, without more, as indicative of “actual bias or hostility” towards Johnson, see Roland M. v. Concord Sch. Comm., 910 F.2d 983, 997-98 (1st Cir. 1990), nor do we find any evidence of such bias elsewhere in the record. Statements by the hearing officer that moving forward with the proceeding entails a risk, and so that settlement may be well-advised, do not evince bias. Likewise, we find no authority for treating an adverse credibility determination based on the witness‘s conduct before a tribunal as impermissible prejudgment
ii.
Johnson separately claims that the hearing officer inappropriately considered her preference for parochial schools in evaluating her credibility. Johnson contends that this effectively “punished” her preference and violated her First Amendment rights to harbor and express that opinion.
This argument is utterly without merit. Johnson‘s bias against public schools was certainly relevant to the hearing officer‘s determination, as there was reason to believe that Johnson‘s petition was motivated by a desire to place N.S. in a parochial school, rather than any actual inadequacies in N.S.‘s instruction at Horaсe Mann. Johnson mischaracterizes this issue as one of credibility, but Johnson‘s credibility has nothing to do with the ultimate issue of whether N.S. was properly provided with a FAPE. Nor is there any evidence that Johnson was “punished” for her preference. The hearing officer did not ultimately rule against Johnson because of her bias against public schools, but
D.
In her final challenge, Johnson contends generally that N.S.‘s educational progress was not sufficient to provide him with a FAPE. In support of this argument, she contends that the Supreme Court‘s recent decision in Endrew F., 137 S. Ct. 988, raised the bar for evaluating the adequacy of the IEPs offered to disabled students, such that the case should be remanded to thе district court for evaluation under the new standard.
At the outset, we disagree with Johnson‘s premise that Endrew F. altered the standard to be applied here. In that case, a unanimous Court held that the standard applied below, upholding an IEP so long as it was “calculated to confer an ‘educational benefit [that is] merely . . . more than de minimis[,]‘” was insufficient to satisfy the substantive requirements of the IDEA. 137 S. Ct. at 997 (quoting Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 798 F.3d 1329, 1338 (10th Cir. 2015)) (first two alterations in original). Instead, the Court concluded that “[t]he IDEA demands . . . an educational program reasonably calculated to enable a child to make progress appropriate in light of the child‘s circumstances.” Endrew F., 137 S. Ct. at 1001.
In our view, the standard applied in this circuit comports with that dictated by Endrew F. This court has announced
It remains only for us to decide whether, viewed against the record as a whole, the district court‘s conclusion that the IEPs were adequate was clear error. See Lessard I, 518 F.3d at 24. In reaching that determination, the district court canvassed the record and noted the objective indicia of N.S.‘s advancement
We see no clear error in this determination. The facts in the record are certainly sufficient to support the conclusion that N.S. in fact made meaningful educational progress under the educational methodology proposed by the IEPs and employed in Horace Mann. Evidence from evaluations during this period demonstrate that N.S. made meaningful linguistic advancements, particularly when using both sign and spokеn language, and it is reasonable to conclude that an IEP offering a similar program would allow him to continue this development. See D.B., 675 F.3d at 38 (permissible
Johnson fails to point us to any evidence in the record that contradicts the district court‘s finding, much less any indication that it is unsuрportable considering the record as a whole.15 Instead, she focuses on statements by the BSEA and the district court characterizing N.S.‘s progress as “slow” and his linguistic skills as “significantly delayed.” To the extent that Johnson implies that “slow” progress is, in and of itself, insufficient to constitute a “meaningful educational benefit,” we cannot agree. Instead, the relationship between speed of advancement and the educational benefit must be viewed in light of
III.
For the reasons set forth above, we affirm the district court‘s grant of summary judgment.
STAHL
CIRCUIT JUDGE