MR. P AND MRS. P, ON THEIR OWN BEHALF AND AS NEXT FRIENDS OF M.P. v. WEST HARTFORD BOARD OF EDUCATION, THOMAS MOORE, SUPERINTENDENT, WEST HARTFORD PUBLIC SCHOOLS, IN HIS OFFICIAL CAPACITY, GLENN MCGRATH, DIRECTOR OF PUPIL SERVICES, WEST HARTFORD PUBLIC SCHOOLS, IN HIS OFFICIAL CAPACITY, ESSIE S. LABROT, TOWN CLERK, IN HER OFFICIAL CAPACITY
Docket No. 16-3618-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
March 23, 2018
August Term, 2017
Argued: November 7, 2017
—v.—
Defendants-Appellees,
Defendant.
The parents of a student with an emotional disturbance brought this action against the student’s school district, claiming that the school district violated procedural requirements, provided an inadequate individualized education program (IEP) for more than two school years, and offered an inadequate IEP for a third year, which denied the student a free appropriate public education (FAPE) under the Individuals with Disabilities Education Act (IDEA). The District Court for the District of Connecticut, Vanessa L. Bryant, J., held that the school district provided and offered the student a FAPE at all times and that any procedural violations did not entitle the parents to any relief. The parents appealed. Because we agree with the district court, we affirm the district court’s judgment.
COURTNEY P. SPENCER, Middletown, CT, for plaintiffs-appellants.
SUSAN C. FREEDMAN, (Peter J. Murphy and Peter J. Maher, on the brief), Shipman & Goodwin LLP, Hartford, CT, for defendants-appellees.
The plaintiffs-appellants, Mr. and Mrs. P. (the “parents”), commenced this action in the United States District Court for the District of Connecticut (Bryant, J.) on behalf of themselves and their son, M.P., against the defendants-appellees, the West Hartford Board of Education (the “District” or the “Board”) and two District officials in their official capacities,2 alleging claims under the Individuals with Disabilities Education Act (the “IDEA”), as amended,
In Dеcember of his sophomore year at Hall High School in West Hartford, Connecticut (“Hall” or the “school”), M.P. began having suicidal and homicidal
After a seven-day hearing, a Due Process Hearing Officer (a “Hearing Officer” or an “IHO”) principally denied the parents’ challenge, and the district court affirmed the IHO’s decision. On appeal, the parents argue that the judgment of the district court should be reversed because the District violated the IDEA’s procedural safeguards, denying the parents an opportunity to participate in formulating M.P.’s special education program and depriving M.P. of educational benefits, and because the District deprived M.P. of the free appropriate public education (“FAPE”) required by the IDEA.
This case requires us in particular to determine the appropriate standards to be applied in determining whether a school district has acted with sufficient expedition in identifying a student entitled to special education and related
For the reasons explained below, the judgment of the district court is AFFIRMED.
I.
The IDEA requires States receiving federal funds to provide “аll children with disabilities” with a FAPE.
The IEP is “the centerpiece of the [IDEA’s] education delivery system for disabled children.” Endrew F., 137 S. Ct. at 994 (quoting Honig v. Doe, 484 U.S. 305, 311 (1988)). “The IEP, the result of collaborations between parents, educators, and representatives of the school district, ‘sets out the child’s present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives.’” Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002) (Sotomayor, J.) (quoting Honig, 484 U.S. at 311). “Any review of an IEP must appreciate that the question is whether the IEP is reasonable, not whether the court regards it as ideal.” Endrew F., 137 S. Ct. at 999.
Thus, Connecticut must deliver each disabled child a FAPE pursuant to the child’s IEP. See id. at 993-94. Connecticut accomplishes this through its State Department of Education and the Board of Education for each school district in the State, each of which is responsible for developing an IEP for disabled
The IDEA also provides a variety of procedural safeguards for the parents of disabled children. See Lillbask ex rel. Mauclaire v. Conn. Dep’t of Educ., 397 F.3d 77, 81-82 (2d Cir. 2005). Parents may challenge a proposed IEP by filing a complaint with the state education agency, which is resolved through an “impartial due process hearing.”
M.P., now 21 years old, attended public schools in West Hartford, Connecticut. M.P. has a Full Scale IQ of 108, which is in the upper limits of the “average” range. Special App. 3. Although M.P. had a history of awkward social interactions with peers, M.P.’s education progressed steadily, and M.P. earned average to above average grades until midway through his sophomore year at Hall.
In December 2011, Mrs. P. discovered that M.P. was receiving “D” grades in all of his classes. When Mrs. P. confronted M.P. about his grades, M.P. expressed suicidal ideations. Mr. and Mrs. P. called M.P.’s pediatrician, who recommended taking M.P. to the Connecticut Children’s Medical Center (the “CCMC”). M.P. had a pocketknife with him when he arrived at the CCMC, which was confiscated by hospital staff. Upon learning that the pocketknife would not be returned to him, M.P.’s reaction resulted in a referral to the Institute of Living (the “IOL”), where he remained overnight for observаtion.
Mrs. P. notified Hall of M.P.’s hospitalization and suicidal ideation. On December 8, 2011, the school convened a Student Assistance Team/Child Study Team Meeting, which Mr. and Mrs. P. attended, along with four of M.P.’s
M.P. began seeing a private Licensed Clinical Social Worker in 2011. At some point, although it is not clear when these discussions took place, M.P. expressed to the social worker a desire to kill his former psychiatrist and discussed blowing up a hospital and attacking people at school.
On January 31, 2012, the school convened a meeting pursuant to
Hall officials and M.P.’s parents met three more times after the January 31, 2012, 504 Review Meeting as part of a planning and placement team (a “PPT”) process before M.P. was found eligible for special education on June 11, 2012. During this time, M.P. was also evaluated by a psychologist and had a consultation with a psychiatrist to determine whether and to what degree M.P. required further accommodations or special education.
In March 2012, the parents referred M.P. for special education after M.P. had stopped attending school altogether in February 2012. When M.P. stopped attending school, M.P.’s psychiatrist spoke to the school, and the school arranged homebound tutoring. Also in March 2012, M.P. took the Connecticut Academic
The PPT met on March 12, 2012 to review the parents’ referral and observed that M.P. had been struggling with “severe anxiety and school refusal,” but that his parents “reported that medications are beginning to be helpful to [M.P.].” A.A. 345. The PPT concluded that because M.P. had not been experiencing his difficulties “over a long period of time,” M.P. did not qualify for special education. Id. However, the team kept M.P.’s Section 504 accommodations in place.
On April 23, 2012, the PPT met again to review the parents’ referral for special education. At the time, M.P. was hospitalized at St. Francis Hospital “due to emotional concerns.” Id. at 348. The parents reported that M.P. had been having “aggressive thoughts,” which had caused his psychologist to call the West Hartford police. Id. The PPT increased M.P.’s homebound tutoring to eight hours per week. The school asked that the parents and M.P.’s teachers complete behavioral checklists and recommended a consultation by the District‘s psychiatrist, Dr. Black. The PPT also noted that M.P.’s private psychiatrist had so far refused to release his evaluation to the school and that the parents were
On May 9, 2012, the District’s psychologist evaluated M.P. and administered the Behavior Assessment System for Children 2nd Edition (“BASC-II”), an “integrated system designed to assess a variety of emotional and behavior issues.” Id. at 351. Based on M.P.’s self-reporting, the psychologist placed M.P. in the “At-risk” range for Hyperactivity and in the “Clinically Significant” range for Personal Adjustment relating to a poor relationship with his parents. Id. M.P. reported “having no more unusual thoughts or perceptions, no more anxiety based feelings and no more depressed feelings than others his age.” Id. Based on M.P.’s psychiatric diagnoses and refusal to attend school, the District’s psychologist recommended that “the PPT explore the possibility of a special education mandation under the category of Emotional Disturbance.” Id. at 352.
STRIVE, which stands for Success Through Responsibility Initiative Vision Education, is an alternative high school program that includes the necessary academic courses to meet the District’s graduation requirements, with certain modifications. STRIVE employs a data-driven behavior management system
One week after Dr. Black’s evaluation, on May 17, 2012, the PPT met to review his recommendations and determine M.P.’s program for the remainder of the school year. Because the school year was almost over, the PPT recommended that M.P. continue homebound tutoring through the end of his sophomore year. The PPT noted that, while M.P. was “doing well with tutoring,” the tutoring had been “inconsistent on the part of the tutor,” and that the District would provide compensatory tutoring to make up for time missed. Id. at 357. The PPT also noted that the school had not yet received any private evaluations of M.P., and that the PPT would meet again on June 11, 2012, “to address [M.P.’s] progress and determine [eligibility].” Id.
At the June 11 meeting, the PPT determined that M.P. was eligible for special educаtion under the primary disability of “Emotional Disturbance.” Id. at 358. The team decided to continue M.P.’s homebound tutoring at eight hours per week until M.P. completed the tenth grade curriculum, and the team scheduled a meeting the following week to determine M.P.’s special education program for the next school year.
On July 13, 2012, Dr. Isenberg, a private pediatric neuropsychologist, conducted a neuropsychological evaluation of M.P. Dr. Isenberg diagnosed M.P. with High Functioning Autistic Spectrum Disorder/Asperger’s Syndrome, Processing Disorder -- Predominately Nonverbal LD and Executive Subtype, and Psychotic Disorder -- Not Otherwise Specified. In Dr. Isenberg’s view, M.P. was “not emotionally stable enough to return to a mainstream learning environment” and required “a more self-contained therapeutic learning environment.” Id. at 402. While Dr. Isenberg noted that there were “many elements of the STRIVE program that would be beneficial, including access to a more contained environment, access to increased structure/supervision, behavior support, and counseling service,” he also expressed “some concern that [M.P.] will require a more specialized therapeutic program,” such as оne offered at the IOL, where M.P. had been hospitalized. Id.
In March 2013, M.P. again took the state-wide CAPT. This time, M.P. completed the test, scoring Proficient in math and reading and Goal in science and writing.
The PPT met again on May 22, 2013 to conduct an annual review of M.P.’s junior year at STRIVE. Although M.P.’s special education teacher and social worker at STRIVE and his guidance counselor from Hall attended the meeting, no regular education teacher from Hall was present. The IEP prepared at the May 22 meeting observed that M.P. “is very respectful and polite. He has a great sense of humor. He has demonstrated the ability to turn things around, especially in regard to attendance, but more importantly has been open to seeing things with a different perspective. [M.P.] is ready to attend Hall part time next year.” Id. at 432. However, the IEP also noted that M.P. “can be inappropriate
At the time, M.P. had close to a 3.0 GPA, consisting of mostly “As” and “Bs.” The PPT noted that M.P. had “mastered most of [his] academic and social and behavioral goals/objectives,” and that his “attendance has improved significantly since entering [STRIVE].” Id. at 428. The PPT planned a split schedule for M.P. during his senior year, where he would begin each day with classes at Hall and then return to STRIVE in the afternoon for lunch, more classes, and group counseling. The District was to provide transportation. The PPT decided that M.P. did not require programming during the summer between his junior and senior years. While the parents attended the May 22 meeting, the IEP developed at the meeting was not sent to them until November 2013.
M.P. had difficulty transitioning back to Hall for his senior year. M.P. had several unexcused or unverified absences in September and October 2013. On October 22, 2013, M.P. got upset when a guidance counselor questioned him about skipping class, and he threatened to leave the school and not return. M.P.
In light of these issues, the PPT met on October 28, 2013 to reassess M.P.’s IEP. M.P. expressed a desire to return to STRIVE full time, which the PPT recommended, and the IEP was amended to implement this recommendation. The October 28 IEP also noted M.P.’s interest in starting his own landscaping business and attending community college. The IEP included goals and objectives keyed toward finding and maintaining employment that would match M.P.’s vocational strengths and weaknesses.
On November 26, 2013, after M.P. had returned to STRIVE full time, the parents e-mailed several STRIVE staff members and said that they realized “that Strive is not the ideal environment for [M.P.,] but[] it has assisted him in many ways and for that we are grateful.” Supp. App. of Def.-Appellee (“Supp. App.”) 20. The parents told the staff members that “[i]t has been a huge relief to [M.P.] to be back [in] an environment where he feels more comfortable.” Id.
On December 13, 2013, M.P. was suspended from STRIVE for three days and arrested for punching a fellow male student in defense of a female student.
The PPT met on February 4, 2014 to discuss changes to M.P.’s IEP and M.P.’s transition for the 2014-2015 school year. The parents’ attorney attended the meeting, and the parents excused the presence of a regular education teacher from Hall. M.P. appeared to rebound from the December 13 episode, and at the meeting he had a 98% on STRIVE’s behavioral intervention system. The PPT also noted that M.P. was an “excellent participant in group problem-solving.” A.A. 451. In response to an inquiry by the parents’ attorney about vocational training, the Transition Coordinator reported that M.P. had accessed “CAVE”5 to practice job applications, resume and cover letter writing, and career research, and had taken multiple trips to community colleges.
The parents rejected the Districtʹs recommendations and instead requested an out-of-district placement at Options, a comprehensive vocational training program, for the remainder of the school year, as well as two years of compensatory education at Options.6 The District declined the parentsʹ request
On March 24, 2014, the parents requested a Special Education Due Process Hearing. See
On May 22, 2014, M.P. was hospitalized for about one week after he walked out of his house with a kitchen knife and made homicidal statements toward his former psychiatrist. The psychiatric intake evaluation noted that M.P. denied suicidal ideation and had not displayed any aggressive behavior since arriving at the hospital, other than his statements about hurting his former psychiatrist.
The PPT met again on June 2, 2014, for an annual review. The PPT determined that M.P. had met the course requirements for graduation. At the meeting, the District modified its previous recommendation and proposed that M.P. join a post-secondary program called ACHIEVE. The school-based aspect of ACHIEVE is located in the same building as STRIVE. Progress at ACHIEVE is tracked through individualized Community Based Situational Assessments and
The parents rejected the Districtʹs recommendation and renewed their request for two years of compensatory education at Options. The District again declined the parentsʹ request.
In June 2014, M.P. graduated from STRIVE. That same day, Mrs. P. and M.P. spoke briefly with a paraprofessional at ACHIEVE and looked into an ACHIEVE classroom. However, M.P. did not participate in ACHIEVEʹs orientation program.
On November 14, 2014, the parents filed a complaint in the District Court for the District of Connecticut appealing the Hearing Officerʹs Final Decision and Order in its entirety. In a September 29, 2016 Memorandum Opinion, the district court denied the parentsʹ motion for summary judgment and granted the Districtʹs cross-motion for summary judgment in full. Mr. & Mrs. P., 14-cv-1697, 2016 WL 5660389, at *15 (D. Conn. Sept. 29, 2016).
This appeal followed.
III.
We engage in a “circumscribed de novo review of a district courtʹs grant of summary judgment in the IDEA context because the responsibility for determining whether a challenged IEP will provide a child with a FAPE rests in the first instance with administrative hearing and review officers.” M.W. ex rel. S.W. v. N.Y.C. Depʹt of Educ., 725 F.3d 131, 138 (2d Cir. 2013) (internal quotation marks and brackets omitted). “Accordingly, our de novo review only seeks to
“[F]ederal courts reviewing administrative decisions must give ʹdue weightʹ to these proceedings, mindful that the judiciary generally ʹlack[s] the specialized knowledgе and experience necessary to resolve persistent and difficult questions of educational policy.ʹ” Gagliardo, 489 F.3d at 113 (quoting Rowley, 458 U.S. at 206, 208 (alteration in original)). Deference to the administrative decision is particularly appropriate when the administrative officerʹs review has been thorough and careful, and when the courtʹs decision is based solely on the administrative record. See M.H. v. New York City Depʹt of Educ., 685 F.3d 217, 241 (2d Cir. 2012). While this Court “do[es] not simply rubber stamp administrative decisions,” Walczak, 142 F.3d at 129, review of the administrative decision “is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review,” Rowley, 458 U.S. at 206.
On appeal, the parents argue that the decisions of the Hearing Officer and the district court should be reversed because the District committed procedural violations, failed to provide M.P. with a FAPE from March 24, 2012, through June
A.
The parents contend that the district court erred in upholding the Hearing Officerʹs rejection оf the majority of the parentsʹ procedural challenges and in holding that any procedural violations that did occur did not entitle the parents to relief.
A procedural violation of the IDEA entitles a plaintiff to relief only if it: “(I) impeded the childʹs right to a [FAPE]; (II) significantly impeded the parentsʹ opportunity to participate in the decisionmaking process regarding the provision of a [FAPE] to the parentsʹ child; or (III) caused a deprivation of educational benefits.”
In this case, the parents argue that the District committed the following procedural violations: (i) waiting too long to identify M.P. as eligible for special education; (ii) conducting an inadequate evaluation of M.P.; (iii) providing insufficient homebound tutoring during M.P.ʹs sophomore year of high school; (iv) failing to consider the evaluation from the parentsʹ private psychiatrist; (v) providing inaccurate IEPs; (vi) failing to have a regular attendance teacher from Hall at the May 22, 2013 PPT meeting; (vii) failing to provide the parents with the IEP from the May 22, 2013 PPT meeting until six months after the PPT meeting; and (viii) failing to disclose the specific qualifications of the paraprofessionals who would be working with M.P. at ACHIEVE.
The Hearing Officer concluded that the District identified M.P. as a student eligible for special education with sufficient expedition, and that the District provided appropriate evaluations and transition planning. While the
The parents argue that the District violated the “Child Find” obligation under the IDEA by failing to identify M.P. promptly as eligible for special education.
The “Child Find” obligation requires each State to have policies and procedures to ensure that all children with disabilities are identified and еvaluated for special education and related services.
A Stateʹs duty to evaluate a student can be triggered by a request by the studentʹs parents, the school district, or others.
In accord with other Courts of Appeals, we consider a violation of the Child Find obligation a procedural violation of the IDEA. See D.K., 696 F.3d at 249; D.A. ex rel. Latasha A. v. Houston Indep. Sch. Dist., 629 F.3d 450, 453 (5th Cir. 2010); Bd. of Educ. of Fayette Cty. v. L.M., 478 F.3d 307, 313 (6th Cir. 2007); see also Handberry v. Thompson, 446 F.3d 335, 347 (2d Cir. 2006) (observing that the “Child Find provisions of the IDEA” require States to adopt certain “policies and procedures” (internal quotation marks omitted)).
To hold a school district liable for failing to identify a student who should be evaluated for purposes of receiving special education, a “claimant must show
The district court correctly concluded that, because the parents requested a Due Process Hearing on March 24, 2014, and because of the two-year limitations period for IDEA claims, “[e]vents preceding March 24, 2012 are untimely but may provide evidence of a child-find violation from Marсh 24, 2012 through June 11, 2012, when [M.P] was deemed eligible for special education.” Mr. & Mrs. P., 2016 WL 5660389, at *7;
The parents first referred M.P. for special education in March 2012. A PPT meeting was convened on March 12, 2012 to consider the parentsʹ referral and determine M.P.ʹs eligibility for special education. During that PPT meeting, school officials acknowledged that M.P. was experiencing severe anxiety, but the parents reported that M.P.ʹs medications were beginning to help. Because M.P. had not been experiencing problems “over a long period of time,” the school officials determined that M.P. did not then meet the criteria for the disability of emotional disturbance. A.A. 345. The district court found that this decision was reasonable, concluding that “[t]he Boardʹs decision to continue monitoring [M.P.] from March 24 until April 23 to determine whether [M.P.ʹs] condition was long lasting as required for special education eligibility, and then to initiate the evaluation process, was supported by a preponderance of the evidence.” Mr. & Mrs. P., 2016 WL 5660389, at *8. We agree.
The determination by the Board to continue monitoring M.P. was reasonable because, under the IDEA, “Emotional disturbance means a condition exhibiting [certain] characteristics over a long period of time and to a marked
When the PPT reconvened on April 23, 2012, M.P. had just been hospitalized a second time for emotional issues. This hospitalization -- M.P.ʹs second since he began having problems in December -- created a reasonable suspicion that M.P. might require special education, and the PPT began the initial evaluation. Although the parents were withholding a release for M.P.ʹs psychiatric records “until they ha[d] a better understanding of what is going on with [M.P.,]” the PPT recommended a psychiatric consultation with the Districtʹs psychiatrist. A.A. 348. Within three weeks, M.P. had met with the Districtʹs psychologist and psychiatrist. The PPT met to review the reports from the
In sum, the District initiated an evaluation of M.P. at the April 23 meeting and recommended M.P. for special education by June 11, about a month and a half later. Once the Districtʹs psychоlogist recommended the District “explore the possibility of a special education mandation under the category of Emotional Disturbance,” A.A. 352, and the Districtʹs psychiatrist suggested STRIVE as an option, the PPT held one more meeting on May 17 “to review recommendations from the psychiatric consult and determine the correct placement for the
ii.
The parents also argue that the District failed to conduct a sufficiently thorough evaluation of M.P. once the District suspected M.P. might have a disability. The district court rejected this argument, upholding the Hearing Officerʹs determination that, given that M.P.ʹs suspected disability was emotional disturbance, the psychological evaluation and psychiatric consultation the District conducted were sufficiently thorough. We agree.
The parents argue that the Districtʹs evaluation was insufficiently thorough because it overlooked M.P.ʹs diagnosis of Aspergerʹs Syndrome and his demonstrated weakness in writing. The IDEA required the District to assess M.P.
iii.
The parents also argue that the District committed a procedural violation by providing M.P. with insufficient homebound tutoring. The Hearing Officer agreed because the homebound tutoring provided to M.P. during the second semester of his sophomore year was “inconsistent in terms of duration of sessions and number of sessions per week.” Special App. 15. However, the Hearing Officer determined that M.P. was not denied any educational benefits,
iv.
The parents also allege that the District committed a procedural violation by failing to consider the report of the parentsʹ private neuropsychologist, Dr. Isenberg, at the September 20, 2013 PPT meeting. That meeting was convened “to review a [neuropsychological] evaluation administered by Dr. Isenberg,” although it is not clear from the meeting minutes what, if any, substantive discussion was devoted to the report. A.A. 408.
While the IDEA required the District to consider this neuropsychological report, the District was not required to implement Dr. Isenbergʹs suggestions. See
v.
The Hearing Officer found that the District committed a procedural violation by drafting inaccurate and incomplete IEPs but concluded that this did
vi.
The parents argue that the absence of a regular education teacher from Hall at the May 22, 2013 PPT meeting was a procedural violation. The IDEA
The mere absence of a regular education teacher at any given IEP meeting is not a per se procedural violation. The relevant inquiry with regard to this claim is whether M.P.‘s regular education teacher attended the IEP meetings “to the extent appropriate.” See
The parents also contend that the District‘s failure to provide the parents with a copy of the IEP developed at the May 22, 2013 meeting for six months, which the Hearing Officer and the district court agreed was a procedural violation by the District, denied them a meaningful opportunity to participate and denied M.P. a FAPE. The district court observed that the parents had attended every PPT meeting and did not allege that they were unaware of any programming selected for M.P., and the violation therefore was not substantive. Mr. & Mrs. P., 2016 WL 5660389, at *10. We agree with the district court that the parents have not shown how this procedural violation impeded M.P.‘s education.
The parents also contend that the failure to provide them with the IEP developed at the May 22, 2013 meeting in a timely fashion amounted to a denial of their opportunity to participate in the decision-making process. The parents assert that an e-mail Mrs. P. sent to school officials on October 17, 2013 expressing “concern that [M.P.] may not be receiving support during his time at Hall[,]” shows that the parents thought M.P. was receiving support that he was not receiving while transitioning back to Hall. A.A. 566-67. However, Mrs. P.
viii.
The parents also contend that the District failed to provide the qualifications of the paraprofessionals who would work with M.P. at ACHIEVE and that this was a procedural violation, which denied M.P. a FAPE and denied the parents an opportunity to participate in the decision-making process. The parents cite no authority for the proposition that the District was required to рrovide them with the specific qualifications of the paraprofessionals at a
The parents’ contention that the District‘s failure to provide specific details about ACHIEVE‘s staff beyond those conveyed by Ms. Pettinelli and available at the orientation is without merit, and the District did not commit a procedural violation on this basis.
ix.
We also agree with the district court and the Hearing Officer that the District‘s procedural violations did not impede M.P.‘s right to a FAPE, hinder the parents’ opportunity to participate in the decision-making process, or otherwise deprive M.P. of education benefits, even when considered cumulatively. See R.E., 694 F.3d at 190;
B.
The parents also chаllenge the substantive adequacy of the programs that the District provided to M.P., beginning with the homebound tutoring and accommodations made during the second semester of M.P.‘s sophomore year at Hall in 2012, through the District‘s proposed post-secondary program for the 2014-2015 school year at ACHIEVE. The Hearing Officer found that each program provided or proposed by the District, with the exception of the transportation proposed for M.P. at ACHIEVE, provided M.P. with a FAPE. The district court examined each of these findings and sustained the Hearing Officer‘s determinations. Mr. & Mrs. P., 2016 WL 5660389, at *10-14.
We agree with the district court that the record supports the substantive adequacy of the education programs provided to M.P. through his senior year
The district court described the standard for reviewing a substantive challenge under the IDEA as follows:
To establish a violation of the IDEA‘s substantive requirements, a party must show that the revised “individualized education program developed through the Act‘s procedures” was not “reasonably calculated to enable the child to receive educational benefits.” See Rowley, 458 U.S. at 206-207. In reviewing this claim, the Court must keep in mind that a district is not required to furnish “every special service necessary to maximize each handicapped child‘s potential.” Id. at 207; [Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 196 (2d Cir. 2005)]. “Instead, the IDEA is satisfied if the school district ‘provides an IEP that is likely to produce progress, not regression,’ and if the IEP affords the student with an opportunity greater than mere ‘trivial advancement.‘” [A.S. v. Trumbull Bd. of Educ., 414 F. Supp. 2d 152, 173 (D. Conn. 2006)].
Mr. & Mrs. P., 2016 WL 5660389, at *11.
In Endrew F., decided approximately six months after the district court‘s decision in this case, the Supreme Court rejected the contention that the IDEA‘s substantive requirements were met where the student had received an “educational benefit that is merely . . . more than de minimis.” Endrew F., 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) (brackets omitted)). The Supreme Court reasoned that “[i]t cannot be the case that the [IDEA] typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot.” Id. 1000–01. Rather, the Supreme Court held that “[t]he IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child‘s circumstances.” Id. 1001 (emphasis added).
Prior decisions of this Court are consistent with the Supreme Court‘s decision in Endrew F. Hence, this Court has emphasized that the substantive adequacy of an IEP is focused on whether an IEP was “reasonably calculated to enable the child to receive educational benefits” and “likely to produce progress, not regression.” A.M., 845 F.3d at 541. In Walczak, this Court explained that, while the “IDEA does nоt itself articulate any specific level of educational benefits that must be provided through an IEP,” “the door of public education must be opened for a disabled child in a ‘meaningful’ way. This is not done if an IEP affords the opportunity for only trivial advancement.” 142 F.3d at 130 (quoting Rowley, 458 U.S. at 192 (internal quotation marks and citations
We affirm the judgment of the district court because the record indicates that the District provided M.P. with a meaningful educational program that was reasonably calculated to enable M.P. to make progress appropriate in light of his circumstances. Endrew F., 137 S. Ct. at 1001. After M.P.‘s first hospitalization, the District made several accommodations: allowing M.P.‘s teachers to give a “P” for low grades, having no penalty for late work, and providing staff and a resource study hall to help M.P. handle his coursework. When M.P.‘s problems persisted
The record also demonstrates that the District provided M.P. with a FAPE during his junior and senior years at STRIVE. While at Hall, M.P. failed to complete the state-wide CAPT. During his first year at STRIVE, M.P. not only completed the test, but did well, scoring Proficient in math and reading and Goal in science and writing. Not only did M.P. pass from grade to grade while at
Mrs. P. testified that M.P. made social, emotional, and behavioral progress while attending STRIVE, and that she did not believe M.P. should have attended Hall during at least his junior year. While the parents believed that STRIVE was “not the ideal environment” for M.P., the parents told STRIVE staff that STRIVE assisted M.P. in many ways and that when M.P. returned to STRIVE after his failed transition back to Hall at the beginning of his senior year, it was “a huge relief to [M.P.] to be back [in] an environment where he feels more comfortable.” Supp. App. 20. While the parents argue that STRIVE‘s curriculum was too easy for M.P., when the PPT planned for M.P. to take chemistry at Hall during his
Attending STRIVE also enabled M.P. to participate in athletics at Hall, where he was on the wrestling team during his junior and senior years. His wrestling coach described M.P. as a “valued member of the team” who “others looked [to] for a funny quip when times were tough or practice was hard” and who “progressed from a rookie wrestler to one who competed and won a varsity spot his senior season.” Id. at 21. The record reflects that STRIVE provided a structured, challenging environment that enabled M.P. to succeed and develop without overwhelming him. The parents, who did not object to M.P.‘s placement in STRIVE until the second semester of his senior year, point to no alternatives that would have served M.P. better.
The parents contend that it is error to rely on M.P.‘s grades as an indication of his progress. However, grades are an important indication of any student‘s progress. While not “every handicapped child who is advancing from grade to grade . . . is automatically receiving a [FAPE],” the Supreme Court has
Regular examinations are administered, grades are awarded, and yearly advancement to higher grade levels is permitted for those children who attain an adequate knowledge of the course material. Progress through this system is what our society generally means by an education. And access to an education is what the IDEA promises. Accordingly, for a child fully integrated in the regular classroom, an IEP typically should, as Rowley put it, be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.
The parents argue that ACHIEVE would not have provided M.P. with a FAPE and that M.P. should have been designated to attend Options instead. The parents spend considerable time arguing that Options is superior to ACHIEVE, but that is not the relevant inquiry. Rather, the relevant inquiry is whether the District‘s proposed placement for M.P., at ACHIEVE, was “reasonably calculated to enable [M.P.] to make progress appropriate in light of [his] circumstances.” See Endrew F., 137 S. Ct. at 1001. That is because “courts lack the ‘specialized knowledge and experience’ necessary to resolve ‘persistent and difficult questions of educational policy,‘” and thus “once a court determines that the requirements of the [IDEA] have been met, questions of methodology are for
In this case, the record supports the finding that, with the modification to provide private transportation, ACHIEVE was reasonably calculated to allow M.P. to continue to make progress in light of his circumstances. The Hearing Officer described ACHIEVE as “strikingly similar” tо Options. Special App. 14. The thrust of the parents’ argument is that ACHIEVE does not provide sufficient supervision of students at job sites or in the community, whereas Options provides a one-on-one job coach to each student. As the district court pointed out, the minutes from the June 2, 2014 PPT meeting specifically indicated that M.P. would have a one-on-one job coach at ACHIEVE. Moreover, STRIVE‘s staff, who worked with M.P. on a daily basis during his two years in the program, testified that, other than the single altercation when he defended a female student, M.P. never acted out physically or threatened anyone. As STRIVE‘s Program Coordinator put it, “[M.P.] wasn‘t someone that we had to stand over, if you will.” Supp. App. 403. In any event, the Hearing Officer directly addressed the parents’ safety concerns by instructing the District to provide M.P. with
The parents also contend that Ms. Pettinelli‘s proposed program at ACHIEVE was insufficiently individualized because she did not interview M.P. or review his records. However, Ms. Pettinelli testified that she met with M.P.‘s STRIVE teachers before drafting his proposed goals, and the district court found that the members of M.P.‘s PPT, which adopted the goals in his IEP and recommended ACHIEVE, were “intimately involved” with his record. Mr. & Mrs. P., 2016 WL 5660389, at *13.
The record thus indicates that ACHIEVE, the District‘s proposed post-secondary program, was reasonably calculated to allow M.P. to make further progress in light of his circumstances.
CONCLUSION
We have considered the parents’ remaining arguments and find them to be without merit. For the reasons explained above, the judgment of the district court is AFFIRMED.