P.K. v . Middleton School District CV-08-150-JL 3/9/11 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

P.K., as parent and next friend of J.K.,

v. Civil N o . 08-cv-150-JL Opinion N o .

Middleton School District

OPINION AND ORDER

P.K., acting on behalf of her minor son, J.K., and

proceeding pro s e , has brought this action under the Individuals

with Disabilities Education Act,

et seq.

(“IDEA”). Under

(i)(2)(A), P.K. seeks judicial

review of the New Hampshire Department of Education’s decision

that the defendant, Middleton School District, provided a free

and appropriate public education to J.K., and that P.K. is not

entitled to reimbursement of her expenses in placing him in a

private school instead. Jeremy K. v . Middleton Sch. Dist., IDPH-

FY-08-08-013, slip o p . at 3-4 (N.H. Dep’t of Educ. Dec. 1 7 ,

2007). This court has subject-matter jurisdiction under

(i)(2)(A) and (3)(A).

Pursuant to this court’s local rule for § 1415(i) cases, the

parties have filed the administrative record of the proceedings

before the hearing officer, together with a joint statement of

material facts. L.R. 9.3(b), ( d ) . Each party has also filed a list of disputed facts, a decision memorandum, and a reply to the

other party’s decision memorandum. L.R. 9.3(d), ( e ) . Neither

party has requested an evidentiary hearing o r , for that matter,

oral argument, despite this court’s offer to conduct it at the

request of either party. Based on the administrative record and

the parties’ written submissions, the court affirms the hearing

officer’s decision.

I. Applicable legal standards

“The IDEA provides funding to each state ‘to assist [it] to

provide special education and related services to children with

disabilities,’ provided that ‘[a] free and appropriate public

education is available to all children with disabilities residing

in the state.’” M r . I ex rel. L.I. v . M e . Sch. Admin. Dist. N o .

5 5 ,

, 4 (1st Cir. 2007) (quoting, with added

bracketing,

(a)(1)). A state discharges this

duty “as long as the program that it offers to a disabled student

is ‘reasonably calculated’ to deliver ‘educational benefits.’”

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

(1st Cir. 2008) (quoting Hendrick Hudson Bd. of Educ. v .

Rowley,

(1982)). Generally, this requires the

state “to identify children who may be disabled, evaluate each

child to determine his or her eligibility for statutory benefits,

2 and develop a customized [individualized educational program] to

ensure that the child receives a level of educational benefits

commensurate with a” free and appropriate public education.

at 285 (citing

(a)(3)-(4), 1414(a)-(b)).

P.K. does not dispute that the school district developed an

adequate individualized educational program (“IEP”) for J.K. to

address his stated needs, including a severe allergy to latex.1

Instead, she asserts that the school district deviated from the

IEP by exposing J.K. to “continuous risks of harm”--principally,

products which P.K. says contain latex--while he was in the

fourth grade at its elementary school, and that this amounted to

a denial of a free and appropriate public education.

Again, the hearing officer ruled to the contrary, and P.K.,

as the party challenging that decision, bears the burden of

showing that it was incorrect. See Roland M . v . Concord Sch.

Comm.,

(1st Cir. 1990). In reviewing the

decision, this court “exercises its discretion, informed by the

record and by the expertise of the administrative agency and the

1 The school district formulated both an IEP and an “Individualized Health Plan,” or “IHP,” for J.K. Though each was memorialized in a separate document, the parties have essentially treated them as one and the same throughout this litigation and assumed, as a consequence, that the IHP should be treated just like an IEP for purposes of the IDEA and its implementing regulations. The court will take the same approach.

3 school officials, as to how much deference to afford the

administrative proceedings.” Sch. Union N o . 37 v . M s . C.,

1 , 35 (1st Cir. 2008). This level of scrutiny “falls

somewhere between the highly deferential clear-error standard and

the non-deferential de novo standard.” Lessard v . Wilton

Lyndeborough Coop. Sch. Dist.,

8 , 24 (1st Cir. 2008).

As this court has observed, the court of appeals has not yet

“addressed the question of just how far a school district may

deviate from the terms of an IEP before it fails to provide a”

free and appropriate public education. Burke v . Amherst Sch.

Dist.,

1 0 , 19 (McAuliffe, C . J . ) . As Burke also

observed, though, the consensus of other federal courts of

appeals is that “even a demonstrated IEP implementation failure,

without more, does not constitute a per se denial of a [free and

appropriate public education] or a per se violation of the IDEA.”

at 24-25 (citing Van Duyn ex rel. Van Duyn v . Baker Sch.

Dist.,

(9th Cir. 2007), and Houston Indep. Sch.

Dist. v . Bobby R.,

(5th Cir. 2000)); see also A.P.

v . Woodstock Bd. of Educ.,

0 2 , 205 (2d Cir.

2010); Mark C . Weber, Special Education Law and Litigation

Treatise § 5.5, at 5:9-5:10 (3d ed. 2008). 2

2 There is authority to the contrary. See, e.g., Van Duy

(Ferguson, J., dissenting) (“the failure t

4 Instead, courts generally hold that only

a material failure to implement an IEP violates the IDEA. A material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled child and the services required by the child’s IEP . . . . [T]he materiality standard does not require that the child suffer demonstrable educational harm in order to prevail. However, the child’s educational progress, or lack of i t , may be probative of whether there has been more than a minor shortfall in the services provided.

Van Duyn,

; accord Bobby R.,

(“a

party challenging the implementation of an IEP must show more

than a de minimis failure to implement all elements of that IEP.

and, instead, must show that . . . authorities failed to

implement substantial or significant portions of the IEP”);

Burke,

1 0 , 25-26.

This was essentially the same standard applied by the

hearing officer in this case, who, citing Van Duyn, ruled that

[a] failure to implement a student’s IEP must be material before it will be found to have violated the [IDEA]; there must be more than a minor discrepancy between the service provided and the service required by the IEP. Failure to strictly follow the IEP does

implement any portion of the [IEP] to which the school has assented is necessarily material”); David Ferster, Broken Promises: When Does a School’s Failure to Implement an Individualized Education Program Deny a Disabled Student a Free and Appropriate Public Education,

1 , 76 (2010) (advocating “a per se approach to implementation cases,” while acknowledging that the materiality standard is “a permissible interpretation of [the] IDEA”).

5 not constitute a denial of a [free and appropriate public education].

Jeremy K., slip o p . at 4 . While P.K. asserts that this amounted

to “an incorrect standard,” she also acknowledges that “an IEP

must not be perfectly followed to be compliant,” and goes on to

argue that the school district’s conduct “in exposing [J.K.] to

. . . continuous risks of harm [was] a material breach”--which

appears to more or less adopt the materiality standard used by

the hearing officer. Moreover, P.K. does not articulate or

provide supporting argument for any other standard to assess when

deviations from an IEP amount to the denial of a free and

appropriate public education. The court will therefore apply the

materiality standard here.

II. Background

In relevant part, J.K.’s IEP for the 2006-2007 school year

provided that the school district would “monitor the use of

materials in school to help maintain a latex safe environment”

and to “endeavor to make [his] school environment as latex free

and safe as possible for him. Any supplies given by the school

will be latex free, and his work area(s) will be kept latex

safe.” The IEP further stated that J.K. would “need [a] seat

belt on [the] bus for his safety.” The IEP also called for an

6 array of special education and related services, including

additional reading, writing, and articulation exercises and

physical and occupational therapy. (J.K.’s educational

disabilities were identified as “speech/language” and “other

health impaired.”)3

J.K.’s IHP for the 2006-2007 school year provided also, in

relevant part, that staff were to inspect classrooms “for

possible latex products and remove as many as possible to

maintain a latex free environment,” that latex-free pencils would

“be supplied to all students” at J.K.’s grade level, that the

parents of those students would receive a letter “informing them

of the need for a latex safe/allergy aware classroom,” to “notify

students and parent[s] to make accommodations as necessary” when

“latex products/equipment [were to be] used in projects,” and,

finally, that “[l]atex balloons will be banned from any

school/after school functions.”

3 P.K. argues, as she did to the hearing officer, that the “IEP team refuses to code J.K. for the learning disability of dyslexia,” even though he was diagnosed with it as early as 2004 The hearing officer ruled that “[w]hether to add a particular code to a student’s IEP is for the team to determine,” but that “the issue was raised for the first time” at the due process hearing. Jeremy K., slip o p . at 4 . P.K. has pointed to nothing in the record to the contrary (and the records of the IEP team’s meetings contain no reference to this issue). So this argument is without merit (insofar as it is not moot, since P.K. does not explain how coding J.K. as dyslexic would have affected the content of the IEP, which, again, she has not challenged).

7 The hearing officer found that these “[e]xtensive policies

and procedures for maintaining a latex-safe environment” were

“instituted on a school-wide basis . . . . [T]he school

purchases latex-free supplies, prohibits balloons and other items

containing latex, and has sent informational letters home with

all middle school students.” Jeremy K., slip o p . at 1-2. The

hearing officer also found that “if there was any question at all

as to whether an item brought into the school contained latex,

staff consistently erred on the side of caution by removing the

item. Further, on school-wide basis . . . , there were protocols

and training for responses in the event of actual exposure to

latex allergens.”

at 3 .

P.K. does not dispute any of these findings. Instead, she

argues that, despite the ban on latex items, they made their way

into the school on a number of occasions during the 2006-2007

academic year, yet “there was no corrective, informative or

disciplinary action taken.” Of these eight incidents, four arose

when items potentially containing latex (erasers in three cases,

and balloons brought by an eighth-grade student in the other) had

been introduced into the school building. The hearing officer

found that, in each of these cases, J.K. had not come into

contact with the items, which were immediately removed from his

vicinity as soon as their presence was recognized (the balloons

8 were never brought anywhere near him in the first place). The

remaining four incidents arose when items which the hearing

officer found not to contain latex (newspapers, paper mache, a

guidance counselor’s crutches, and poinsettias displayed in the

office) had been brought into the school, and the hearing officer

found that J.K. had not come into contact with any of them

anyway.

P.K. disputes only two of these findings. First, she argues

that, while the hearing officer found that J.K. had never been

exposed to latex while at school, he in fact had an allergic

reaction in one of the complained-of instances, when he went to

the school nurse’s office complaining of nausea and ended up

vomiting. In declining to attribute this to latex exposure,

however, the hearing officer specifically relied on testimony

from the school nurse that J.K. had not presented with the

symptoms of an allergic reaction, but constipation. P.K. points

to no contrary evidence.

Second, P.K. argues that poinsettias “are in fact dangerous

for latex allergic individuals.” But the hearing officer

specifically relied on testimony from the school nurses that

poinsettias do not contain latex, and could cause an allergic

reaction only “if the stem was cracked and the white substance

[inside] was to come out.” The evidence on which P.K. relies

9 (Internet news articles reporting on a study where blood samples

from latex allergy sufferers were mixed with poinsettia extract)

is not to the contrary. To overcome a hearing officer’s factual

findings on an IDEA appeal, a party must provide at least some

“sound reason,” Lenn v . Portland Sch. Comm.,

(1st Cir. 1990), and P.K. has not done that.

III. Analysis

A. The hearing officer properly found that the District did not deprive J.K. of a free and appropriate public education

As just discussed, the hearing officer supportably found

that items containing latex were brought into J.K.’s school only

4 times during the entire 2006-2007 academic year, that he was

not exposed to them on any of those occasions, and that, in each

case, the items were removed from J.K.’s vicinity as soon as

their presence was recognized.4 This does not constitute a

material violation of the IEP. Indeed, this does not even amount

to a literal violation of the IEP, which does not mandate an

absolutely latex-free facility, but simply requires the District

to “monitor the use of materials in school to help maintain a

4 In light of the supportable finding that J.K. had never been exposed to latex at school during the 2006-2007 academic year, there is no need to address P.K.’s claim that “[a] latex allergy becomes worse with each exposure and increases the chance that the next reaction will be severe or anaphylactic.”

10 latex safe environment” and to “endeavor to make [J.K.’s] school

environment as latex free and safe as possible” (emphasis added).

P.K. also claims that the District violated the IEP by

allowing J.K. to ride on a bus without seatbelts while on a field

trip with his classmates. The hearing officer found that this

had in fact happened, even though J.K.’s IEP called for him to

wear a seatbelt on the bus due to his unusually high risk of bone

fractures. Jeremy K., slip o p . at 3 . The hearing officer also

found, however, that “[n]o injury occurred” and that the

responsible staff member “was subsequently made aware of the

mistake, and did not make it again.”

Thus, the hearing

officer concluded that this sole instance “where an IEP provision

was not strictly followed [did] not give rise to a deprivation

of” a free and appropriate public education, “particularly since

there was no harm alleged or proven.”

P.K. argues, with some justification, that the fact that

J.K. was not injured as a result of not wearing a seatbelt as

prescribed by the IEP “does not negate the violation, nor the

implications of the risk” to which he was exposed. Indeed, “the

materiality standard does not require that the child suffer

demonstrable educational harm in order to prevail” on a claim

that deviations from an IEP amount to the denial of a free and

appropriate education. Van Duyn,

. So if this

11 were the case P.K. says it is--where a school’s “constant and

numerous violations” of an IEP “knowingly and willfully expose[d]

[the student] to unnecessary risk of grievous harm”--then a

denial of a free and appropriate education could legitimately be

found, despite the fortuitous fact that the harm was never

actually realized.

But that is plainly not this case. There were not “constant

and numerous” violations of P.K.’s IEP. In fact, there was only

one--where J.K. was allowed to ride on a bus without a seatbelt

for a single trip--because, as just discussed at length, the four

occasions when items containing latex were brought into the

school and removed as soon as their presence was detected did not

transgress even the literal terms of the IEP.5 Giving the

appropriate level of deference to the hearing officer’s decision,

see M s . C., 518 F.3d at 3 5 , this court cannot say she was wrong

5 At the due process hearing, P.K. complained about four other incidents which allegedly jeopardized J.K.’s safety. The only one of those incidents P.K. even mentions in her submissions here, however, is the one described by the hearing officer as an occasion where J.K. “was unable to use the bathroom in the nurse’s room,” so he used the one at the back of the classroom instead.” Jeremy K., slip o p . at 2 . But P.K. does not explain how this violated any provision of the IEP or the IHP, and that proposition is not apparent to the court. P.K. does state that having to use the class bathroom had “serious social implications for J.K. with his peers” and “violates [his] right to confidentiality,” but those concerns, however valid, do not transform the incident into a violation of the IDEA on any recognizable theory.

12 to conclude that J.K. received a free and appropriate public

education despite this single deviation from the IEP. See Burke,

1 0 , at 25 (upholding a hearing officer’s decision that

the school’s failure to videotape and review the student’s

interactions with her peers, as prescribed by the IEP, did not

deny her a free and appropriate public education, where the

school followed all of the IEP’s other provisions).

B. P.K. is not entitled to private school tuition reimbursement

The hearing officer also concluded that, even if the

District’s alleged omissions did deny J.K. a free and appropriate

public education at its public elementary school, P.K. is

nevertheless not entitled to reimbursement for her expenses in

placing J.K. in a private school instead. The IDEA authorizes

courts “to order school authorities to reimburse parents for

their expenditures on private special education for the child,”

but only if the court “concludes both the public placement

violated [the] IDEA and that the private school placement was

proper under the Act.” M r . I ,

(quotation marks

omitted). If these criteria are satisfied, reimbursement is “a

matter of equitable relief, committed to the sound discretion of

the [district court.”

(quotation marks omitted).

13 As P.K. acknowledges, “‘a private school placement must be

reasonably calculated to enable the child to receive educational

benefits’ to constitute a proper placement” for reimbursement

purposes.

at 24 n.22 (quoting Rafferty v . Cranston Pub. Sch.

Comm.,

1 , 26 (1st Cir. 2006) (additional quotation

marks omitted)). Furthermore, to meet this standard, the private

school must “offer at least some element of the special education

services in which the public school placement was deficient.”

Id. at 24 (quotation marks omitted).

Following the 2006-2007 academic year, P.K. withdrew J.K.

from the public elementary school in the District and enrolled

him at Tri-City Christian Academy, a private school in

Somersworth, New Hampshire. The hearing officer found that “Tri-

City does not provide special education and related services” and

noted evidence that the school was not entirely “safe from latex

exposure,” including that its “students were permitted to decide

whether they wanted to have balloons inside the school building,

and . . . on at least one occasion, balloons were in fact on the

premises.” Jeremy K., slip o p . at 3 .

P.K. does not challenge these findings. Instead, she argues

that Tri-City was intended simply as “an interim placement until

the issues in dispute in this case were resolved,” because

leaving J.K. at the public elementary school “would have been

14 inappropriate and potentially dangerous given the safety concerns

involved.” But even assuming--contrary to the foregoing

discussion--that this is true, the court of appeals rejected

essentially the same argument in M r . I .

There, the parents of a sixth-grader who needed one-on-one

tutoring and other special education services as a result of her

Asperger’s syndrome--and who had attempted suicide--placed her in

a private school after three months had passed and the public

school district had yet to locate a tutor.

. The

private school, however, did not provide the student with any of

the special education services she needed.

. In

upholding the district court’s conclusion that the private school

placement was not “proper” so as to entitle the parents to

reimbursement, the court of appeals explained,

We sympathize with the family’s emotional upheaval, and we certainly do not condone the district’s apparent inattention to the task of locating a tutor for [the student] as it repeatedly promised it would. And we cannot doubt that [the private school], where [the student’s] sister had prospered and where [the student] herself had expressed interest in attending even before the events [leading up to her suicide attempt], must have seemed an attractive solution to an exceedingly difficult set of circumstances. But these considerations simply cannot change the fact that [the private school] . . . simply does not provide the special education services . . . prescribed.

at 2 5 . The same observations are appropriate here.

15 Though there seems to be no reason to question the sincerity

of P.K.’s concern for J.K.’s well-being, the fact remains that he

was enrolled at a private school that provided him with none of

the many special education services he had been receiving in the

public school--and, for that matter, that had allowed students to

bring balloons on to the premises at least once. Without

affording him at least “some element of the special education

services” he required, J.K.’s placement at Tri-City was not

“reasonably calculated to enable him to receive educational

benefits.”

(quotation marks and emphasis omitted).

Indeed, to rule “otherwise would, in essence, embrace the

argument . . . that the IDEA entitles a parent, at public

expense, to ‘seek any alternative placement she wishes if the

public education is inadequate’”--an argument that the court of

appeals has squarely rejected more than once.

(quoting

Rafferty, 315 F.3d at 2 7 ) . S o , even if the school district had

denied J.K. a free and appropriate public education, P.K. would

still not be entitled to reimbursement for her expenses in

sending him to Tri-City, which was not a “proper” placement for

him.

16 III. Conclusion

For the foregoing reasons, this court affirms the decision

of the New Hampshire Department of Education, and otherwise

denies P.K.’s request for tuition reimbursement. The clerk shall

enter judgment accordingly and close the case.

SO ORDERED.

Jo/e ___N _______ ante ___________ U s ited States District Judge

Dated: March 9, 2011

cc: P.K., pro se Melisa A . Hewey, Esq.

17