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 .

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

(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,

(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”),

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.”

(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

. 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].”

(11). It must be “reasonably calculated to enable the child

to receive educational benefits,” Bd. of Educ. v . Rowley,

(1982), and “custom tailored to address the

[disabled] child’s ‘unique needs,’” Lenn v . Portland Sch. Comm.,

(1st Cir. 1993) (citing

(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,

(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,

.

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.

. 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.,

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

(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.

(i)(2).

The district court’s review of state educational

administrative proceedings has been described as “one of involved

oversight.” Lenn,

(citing Roland M . v . Concord

Sch. Comm.,

(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.,

(citations and internal punctuation

omitted). See also T.B. v . Warwick Sch. Comm.,

-

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,

. The burden of proof rests with the party challenging the

administrative decision - here, Michael’s father. See Hampton

Sch. Dist. v . Dobrowolski,

8 , 54 (1st Cir. 1992);

Roland M.,

.

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.,

. 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.,

(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,

.

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.

22