Campbell v. Hooksett School 07-CV-276-SM 06/30/09 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

J.P.E.H., by his parent and next friend, Elizabeth Campbell, Plaintiff

v. Civil No. 07-cv-276-SM Opinion No.

< Hooksett School District, Defendant

O R D E R

In a previous order, the court directed both parties to

submit narrative factual statements and decision memoranda, with

the proviso that plaintiff ("Campbell") could elect to have the

pleading filed as document no. 69 serve as her factual statement,

by informing the court of her intent to do so. The Hooksett

School District ("School District") has filed a narrative

statement of facts. Campbell has not, nor has she elected to

have document 69 serve that purpose. The School District has

filed a decision memorandum. Campbell has not, but she has filed

a document titled "Plaintiff's Decision Memorandum Response," and

a second document titled "Motion in Opposition to Hooksett School

District Memorandum if it Becomes Judgment."1

1 Campbell characterizes her "Motion in Opposition," as a preemptive motion for relief from a final judgment, under Rule 60(b) of the Federal Rules of Civil Procedure, filed in anticipation of the court's entering judgment in favor of the School District. Standard of Review

As the party challenging the Hearing Officer's decision,

Campbell has the burden of proof. Sch. Union No. 37 v. Ms. C.,

(1st Cir. 2008) (citing Hampton Sch. Dist. v.

Dobrowolski,

(1st Cir. 1992)).

In its seminal IDEA opinion, the United States Supreme Court

explained:

[A] court's inquiry in suits brought under [20 U.S.C.] § 1415(e)(2) is twofold. First, has the State complied with the procedures set forth in the Act. And second, is the individualized educational program [IEP] developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits? If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more.

Bd. of Educ. v. Rowley.

(1982) (footnotes

omitted). "More recent decisions in this Circuit indicate that

the first part of this test is more instructive than dispositive

and that compliance with the second part is likely to nullify a

violation of the first part." Sanford Sch. Comm, v. Mr. & Mrs.

L .. No. 00-CV-l13,

, at *6 (D. Me. Feb. 1, 2002)

(citing Town of Burlington v. Dep't of Educ..

, 788

(1st Cir. 1984)).

2 "When the district court reviews the administrative ruling

[in an IDEA case], it exercises its discretion, informed by the

record and by the expertise of the administrative agency and the

school officials, as to how much deference to afford the

administrative proceedings." Sch. Union 37.

(citing Lenn v. Portland Sch. Comm..

(1st

Cir. 1993); Hampton Sch. Dist..

). "Judges are not

trained pedagogues, and they must accord deference to the state

agency's application of its specialized knowledge." Lessard v.

Wilton-Lvndeborough Coop. Sch. Dist..

(1st Cir.

2008) (citing Renner v. Bd. of Educ..

, 641 (6th Cir.

1999)). Accordingly, "judicial review falls somewhere between

the highly deferential clear-error standard and the non-

deferential de novo standard." Lessard.

(citing

Roland M. v. Concord Sch. Comm..

(1st Cir.

1990)). "In the end, the judicial function at the trial-court

level is one of involved oversight, and in the course of that

oversight, the persuasiveness of a particular administrative

finding, or the lack thereof, is likely to tell the tale." Sch.

Union 37. 518 F.3d at 35 (quoting Lenn.

).

Background

Campbell is the mother of J.P.E.H., who was, at all times

relevant to this matter, a student in the Hooksett School

3 District. In October of 2003, during her son's first-grade year,

Campbell requested that he be tested, due to her concerns about

his articulation and expressive language skills. He was tested

and, as a result, was identified as a student eligible for

special education under the code of "speech language impaired."

A team was assembled, and an IEP developed. That IEP included,

on a weekly basis, sixty minutes of speech/language therapy and

ninety minutes of special-education language-arts instruction in

the resource room. At the beginning of J.P.E.H.'s second-grade

year, at Campbell's request, the IEP team amended J.P.E.H.'s IEP

to remove resource-room assistance, which was the only specially

designed instruction in his IEP. Before J.P.E.H.'s third- and

fourth-grade years, Campbell specifically requested that her son

receive no treatment different from that afforded his peers.

J.P.E.H.'s IEP for 2005-06, his third-grade year, initially

contained a provision requiring his teachers to send home a bi­

weekly syllabus, but "[a]t the October 31 parent conference Ms.

Campbell said it [was] no longer necessary to send home the bi­

weekly syllabus [and the] IEP [was] amended to omit that

provision." (Administrative Record (hereinafter "R.") at 277.)

During the process of drafting J.P.E.H.'s fourth-grade IEP,

Campbell "request[ed] frequent communication from the educational

4 team about the content of the weekly curriculum . . . so that she

can reinforce instruction . . . at home." (R. at 297. )2

Accordingly, the fourth-grade IEP provided: "Classroom teacher(s)

and specialists (e.g. health) will provide parent with

information about concepts, topics for discussion/instruction,

key vocabulary and/or copies of reading selections in the areas

of science, social studies and health in advance or concurrent

with instruction." (R. at 302.) That IEP, to which Campbell

gave her informed consent (R. at 305), listed one area of

concern, communication, and within that area, listed one annual

goal supported by seven objectives. (R. at 303-04.)

In late 2006, Campbell challenged the measurability of the

goal and objectives in the fourth-grade IEP. By January of 2007,

the IEP team proposed amendments addressing that issue. In early

February, through her attorney, Campbell agreed that the ISP's

goal and objectives, as amended by the IEP team, were measurable.

Regarding the IEP provision requiring frequent communication

from the educational team, J.P.E.H.'s teachers sent home

2 In an undated document titled "IEP Parent Input Form," that appears to pertain to the preparation of J.P.E.H.'s fourth- grade IEP, Campbell requested a "syllabus for the first 6 weeks of school," " [n]otification of any additional courses (no surprises)", and a "list of courses being taught and times/teacher name." (R. at 292.)

5 information in accordance with the IEP from the start of the 2006

school year. Campbell was not satisfied with the form and/or

content of the information she was sent and made frequent

requests for a "syllabus." In response to Campbell's requests

and, she says, her hiring a lawyer, the school changed the format

of the information it sent home with J.P.E.H. regarding his

curriculum. She was satisfied with that new format, the so-

called "week-at-a-glance," and continued to receive information

in that format until the end of J.P.E.H.'s fourth-grade year.

In late 2006, J.P.E.H. was due for a triennial reevaluation

of his status as a child with an educational disability. The

School District proposed that he be given the same battery of

tests he had been given in 2003 that had identified him as having

an educational disability. Campbell agreed to that testing

regimen. Based on the results of the 2006 tests, as well as his

classroom performance, J.P.E.H.'s educational team determined

that he no longer had an educational disability and, therefore,

was no longer in need of special education. The team did,

however, recommend that J.P.E.H. be provided a 504 plan to

address his attention deficit hyperactivity disorder.

Thereafter, Campbell filed a complaint with the New

Hampshire Department of Education ("DOE") challenging the

6 determination that J.P.E.H. was no longer eligible for special

education, and seeking an order directing the School District to

provide her with a "syllabus" for her son. Subsequently, she

filed an amended complaint alleging a deficiency in one of the

goals in J.P.E.H.'s IEP. The School District filed its own

complaint, seeking affirmance of its determination that J.P.E.H.

no longer qualified for special education.

At a prehearing conference, Campbell, through counsel,

agreed that the lEP's parental-notification provision was being

met, and stipulated that the only issue for the hearing was

whether the School District had correctly determined that

J.P.E.H. was no longer eligible for special education. The two

complaints were consolidated and a hearing was held. In his

opinion and order, the DOE Hearing Officer determined that

Campbell did not meet her burden of proving that the School

District failed to provide J.P.E.H. with a free appropriate

public education ("FAPE") by failing to develop or properly

implement his IEP, and that the School District met its burden of

proving that J.P.E.H. no longer qualified as a child with a

disability.

Campbell filed this action in August of 2007, and enrolled

J.P.E.H. in private school for the 2007-08 school year.

7 Discussion

As explained in an earlier order (document no. 38), what

remains of this case is Campbell's claim for tuition

reimbursement.

In School Committee of Burlington v. Department of Education

of Massachusetts.

(1985), the Supreme Court

construed the IDEA provision that "authorized a court to 'grant

such relief as the court determines is appropriate, ' " Forest

Grove Sch. Dist. v. T.A.,

, ,

, at

*5 (June 22, 2009) (quoting

(i ) (2) (C ) (iii)), and

"held that the provision's grant of authority includes 'the power

to order school authorities to reimburse parents for their

expenditures on private special-education services if the court

ultimately determines that such placement, rather than a proposed

IEP, is proper under the Act,' " Forest Grove.

,

at *5 (quoting Burlington.

). In Forest Grove the

Court characterized its Burlington holding in the following way:

"We have previously held that when a public school fails to

provide a FAPE and a child's parents place the child in an

appropriate private school without the school district's consent,

a court may require the district to reimburse the parents for the

cost of the private education." Forest Grove.

,

at *2. On the other hand, however, the IDEA does not require a local educational agency to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made a free appropriate public education available to the child and the parents elected to place the child in such private school or facility.

(a)(10)(C)(1). As the court of appeals for this

circuit has explained:

Although reimbursement of parental expenses for private residential placements sometimes is available under the IDEA, such reimbursement is contingent upon a showing that the parents diligently pursued the provision of appropriate services from the public school system, yet the school system failed to provide those services; and that the private placement is a suitable alternative. See Florence Ctv. Sch. Dist. Four v. Carter.

(1993); Burlington Sch. Comm..

. When the parents make a unilateral choice, they must bear the associated risk: if the conditions for reimbursement are not met, the financial burdens are theirs. Burlington Sch. Comm..

.

C.G. ex rel. A.S. v. Five Town Cmtv. Sch. Dist..

(1st Cir. 2008) (parallel citations omitted).

Based on relevant law, the dispositive question in this case

is whether J.P.E.H. was denied a FAPE. If he was, then, perhaps,

Campbell might be entitled to tuition reimbursement. If he was

not, then Campbell has no right to tuition reimbursement.

9 In his order, the Hearing Officer considered three issues

relevant to determining whether J.P.E.H. had been denied a FAPE:

(1) the content of his IEP; (2) the implementation of his IEP;

and (3) the 2006 determination that he was no longer eligible for

special education. The Hearing Officer did not err in his

consideration of any of those three issues.

1. IEP Content

Notwithstanding her previous consent to J.P.E.H.'s fourth-

grade IEP, Campbell claims that her son was denied a FAPE because

the goal and the objectives in his IEP were not sufficiently

measurable. The record demonstrates, however, that once Campbell

raised the issue of measurability, the IEP team proposed

amendments to the IEP that added measurability to the goal and

objectives, and that Campbell's counsel agreed that the proposed

amendments resolved the measurability issue. Thus, the court

cannot say that the Hearing Officer erred in ruling that

J.P.E.H.'s "IEP contain[ed] a measurable goal and objectives, and

[was] reasonably calculated to enable him to benefit from his

education." Accordingly, Campbell's claims about the content of

her son's IEP provide no basis for determining that he was denied

a FAPE. See Lessard.

(describing the legal

standard for evaluating the adequacy of an IEP).

10 2. IEP Implementation

Campbell also claims that J.P.E.H. was denied a FAPE because

of the School District's failure to provide her with a syllabus.

The record, however, supports the Hearing Officer's finding that

from the start of the 2006-07 school year, the School District

provided Campbell information about J.P.E.H.'s instructional

program in a manner that was consistent with the requirements of

his fourth-grade IEP. Moreover, the record demonstrates that

notwithstanding the adequacy of its notification procedure, the

School District altered its format, at Campbell's request, and

that the new format, the week-at-a-glance, was satisfactory to

Campbell. Accordingly, Campbell's claims about the

implementation of her son's IEP provide no basis for determining

that he was denied a FAPE.

3. Determination of Ineligibility for Special Education

Finally, Campbell claims she was, in essence, forced to

enroll J.P.E.H. in private school because he would have been

denied a FAPE in the public school he was attending as a result

of the School District's determination that he no longer

qualified for special-education services. She challenges both

aspects of the 2006 reevaluation — the formal testing, and

reports of J.P.E.H.'s classroom performance. The record supports

the Hearing Officer's ruling that J.P.E.H. no longer qualifies as

11 a child with a disability. Formal testing showed adequate

improvement in the areas that initially qualified him for special

education. Moreover, at his mother's request, J.P.E.H. last

received specially designed instruction when he was in the second

grade, but his classroom performance demonstrates that he was

able to benefit from his education even without such instruction.

Because Campbell has produced no evidence to counter the test

results and the academic performance records on which the School

District relies, there is no merit to her claim that J.P.E.H.

would have been denied a FAPE as a result of the School

District's determination that he no longer qualified as a child

with a disability within the meaning of the IDEA.

Conclusion

For the reasons given, plaintiff's requests for relief are

denied, as is her "Motion in Opposition" (document no. 84). The

order of the Hearing Officer is affirmed. The clerk of court

shall enter judgment in favor of defendant and close the case.

SO ORDERED.

Steven J/McAuliffe Chief Judge

June 30, 2009

12 cc: Elizabeth J. Campbell, pro se Anthony I. Blenkinsop, Esq. Melissa A. Hewey, Esq. Jeanne M. Kincaid, Esq.

13