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.

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

(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"),

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

(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

. 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)).

Importantly, however, neither the IDEA nor New Hampshire law

requires the 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 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,

.

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.

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

(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.

(1) (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

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. ,

(citations and internal punctuation

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

, 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,

. The burden of proof rests with the party challenging the

administrative decision - here, Michael and his parents. See

7 Hampton Sch. Dist. v. Dobrowolski,

(1st Cir.

1992); Roland M. ,

.

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.,

. 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.,

(1st Cir.

1991) (emphasis in original). See also T.B. v. Warwick Sch.

Comm.,

("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.,

(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.,

(2001). See also Doe v. Boston

Public Schs,

(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.,

(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.,

(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 .,

(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

21