
USCA1 Opinion

	




        September 23, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 91-2273                               HAMPTON SCHOOL DISTRICT,                                 Plaintiff, Appellee,                                          v.                             CHARLES DOBROWOLSKI, ET AL.,                               Defendants, Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                          [Hon. Nicholas Tsoucalas,* Judge]                                                     _____                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                            Roney,** Senior Circuit Judge,                                     ____________________                            and Pieras,*** District Judge.                                           ______________                                 ____________________             Louis W. Helmuth with whom  Van Buiten, Helmuth, Lobe & Rees  was             ________________            ________________________________        on brief for appellants.             Gerald  M. Zelin  with whom  Diane M.  Gorrow and  Soule, Leslie,             ________________             ________________      ______________        Zelin, Sayward and Loughman were on brief for appellee.        ___________________________                                 ____________________                                 ____________________        _____________________        *    Of the U.S. Court of International Trade, sitting by designation.        **   Of the Eleventh Circuit, sitting by designation.        ***  Of the District of Puerto Rico, sitting by designation.               RONEY, Senior Circuit Judge:  The  parents  of a  child with                      ____________________          learning disabilities who is entitled to individualized education          in  the public  schools sought  reimbursement for  the cost  of a          private school for  a two  year period during  which the  parents          removed their child from the public school system, believing that          the  educational program  offered by  the school  district during          that period was inappropriate.  An administrative hearing officer          ruled for the parents.   Finding that the program  offered by the          school  district for  those years  was a free  appropriate public          education  as envisioned  by the  relevant statute,  the district          court reversed the administrative decision.  We affirm.               In light of the evidentiary support for the district court's          factual   findings  concerning   the   appropriateness   of   the          educational  program offered  by the  school, we  cannot say  the          court  committed clear error.  In  addition, although the parents          may not have  waived their claims  of procedural violations,  the          shortcomings they allege do not entitle them to relief.               The Individuals  with Disabilities Education Act  (the Act),          20  U.S.C.   1400 et  seq., requires that  to qualify for federal                            __  ___          financial  assistance, participating  states must  adopt policies          assuring  all students  with disabilities  the right  to a  "free          appropriate public education."   20 U.S.C.   1412(1).   The state          must  assure  that,  to  the  maximum  extent  appropriate,  this          education will  be provided in the  least restrictive environment          with children who are not disabled.  20 U.S.C.   1412(5)(B).  The                                          2          Act  requires  the  state   to  establish  and  maintain  certain          procedures "to  assure that children with  disabilities and their          parents or guardians  are guaranteed  procedural safeguards  with          respect to the provision of a free appropriate public education."          20 U.S.C.   1415(a).               Schools  are required to develop an individualized education          program  (IEP) for  each child with  a disability.   An  IEP is a          program  of  instruction  and  related  services  that  has  been          specially designed to  meet the unique  needs of the child.   The          IEP document contains information concerning  the child's present          levels of performance; a statement of annual goals and short term          instructional objectives; a statement of the specific educational          services to be provided, and the extent to which this can be done          in the  regular educational programs; and  objective criteria for          measuring the student's progress.                 The  IEP  is  developed  by  a team  including  a  qualified          representative of the local  educational agency, the teacher, the          parents or  guardian, and,  where appropriate,  the student.   20          U.S.C.    1401(a)(20).  Thereafter,  the IEP must  be reviewed at          least  annually  and  revised  when   necessary.    20  U.S.C.             1414(a)(5).    Parents  who  disagree  with  a  proposed IEP  are          entitled  to an  impartial  due process  hearing.   20  U.S.C.             1415(b)(2).    Any  party  aggrieved  by  the   decision  of  the          administrative  hearing officer  can  appeal to  either state  or          federal court.  20 U.S.C.   1415(e).  An IEP is appropriate under          the Act if it provides instruction and support services which are                                          3          reasonably  calculated  to  confer educational  benefits  to  the          student.  Board of  Educ. v. Rowley, 458 U.S. 176, 200-07 (1982);                    _________________________          Abrahamson v. Hershman, 701 F.2d 223, 226-27 (1st Cir. 1983).            ______________________               Michael   Dobrowolski,  the  son   of  Frances  and  Charles          Dobrowolski, was born on November 12, 1974.  While Michael was in          second  grade in  Derry,  New Hampshire,  he  was found  to  have          certain learning disabilities.  Derry Cooperative School District          furnished IEPs  for the  1983-84 and 1984-85  school years,  when          Michael was in  the third and fourth grades.   Both of these IEPs          were accepted by  the Dobrowolskis.   Derry had  proposed a  more          intensive  IEP for  the  fifth grade  which  was not  implemented          because  the family left the  district and moved  to Hampton, New          Hampshire.                 The Hampton  School District received from  the Derry School          District Michael's report cards and the proposed fifth grade IEP.          In addition, representatives of Hampton met with Mrs. Dobrowolski          prior  to the beginning of the  1985-86 school year and knew that          Michael was  a special education student.   At the  start of that          term, however, Hampton had not yet offered an IEP.   As a result,          Michael started  the fifth  grade in  mainstream classes  with no          special educational program.  Several weeks later, on October 17,          1985, an IEP was developed for Michael.  That plan placed Michael          in  mainstream classes for  all subjects,  and made  the resource          room available for up to three hours per week, as needed.                 Michael did not make much use of the resource room the first          semester.  His grades plummeted in the ensuing semesters.  As his                                          4          grades fell,  Michael's time in the resource  room was increased,          reaching four hours per week by March 1986.                During the summer of 1986, the Dobrowolskis enrolled Michael          at  the Learning Skills Academy,  a private special education day          school, where he was tutored in math,  social communication, peer          relation  skills,   and  reading.      Michael  apparently   made          significant progress there, and it appears  that this contrast to          his performance at  Hampton led the Dobrowolskis to  question the          wisdom of Michael's continued enrollment in the public school.               In  August 1986,  Mrs.  Dobrowolski  was  told by  Mrs.  Lee          Cooper,  Hampton's director of  special education, that Michael's          IEP  for sixth  grade could  be the  same as  that for  the fifth          grade, since federal  law does  not require more  than an  annual          review of  an IEP, and the  fifth grade IEP had  been modified in          March  1986.   Mrs. Cooper  also told  Mrs. Dobrowolski  that the          district nonetheless would review  Michael's IEP during the first          week  of  school.   On  September  2,  however, Mrs.  Dobrowolski          informed  Hampton that  she  unilaterally had  decided to  enroll          Michael at Learning Skills Academy.                 Meetings were held  on September 4, 1986,  and September 11,          1986.  The IEP developed as  a result of these meetings  provided          for another increase in resource room time.  It also provided for          modifications  in Michael's  mainstream  academic  classes.   The          modifications  included  preferential  seating, teacher  cues  to          Michael  to  pay  attention,  guidance  to  assist  him  in  time          management, and short term goals with frequent checkups.                                            5               The  Dobrowolskis disagreed  with this IEP,  as well  as the          revisions  presented  at  meetings   in  October,  November,  and          December  of 1986.    The Dobrowolskis  requested  a due  process          hearing in  January  1987.   That  request  was  later  withdrawn          without  prejudice.   The Dobrowolskis  refiled their  request in          September  1987, contesting both the 1986-87 IEP and the IEP that          had  been prepared for the 1987-88 school year.  Michael remained          at the  Learning  Skills Academy  during  the sixth  and  seventh          grades.  The parents sought reimbursement for the cost of tuition          at and transportation to the private school.  Their challenge was          based on claims of both  substantive and procedural violations of          the Act.               A  due  process  hearing was  held  before  a  State of  New          Hampshire hearing officer  in February  and March of  1988.   The          hearing officer found that the IEPs Hampton offered for the 1986-          87  and  1987-88 school  years were  inappropriate.   Finding the          program provided at the  Learning Skills Academy appropriate, the          hearing officer ordered Hampton to reimburse the Dobrowolskis for          their  expenses.    The  hearing  officer  did  not  address  the          Dobrowolskis'  claims of procedural violations.  Hampton appealed          the administrative  decision to the United  States District Court          for the District  of New Hampshire.   After a short bench  trial,          the district court overturned  the hearing officer's decision and          entered judgment for Hampton.                  The  district  court  found  that  the  September  1986  IEP          contrasted sharply  with the  one developed in  October 1985  and                                          6          modified in  March 1986, and that  the individualized instruction          offered  by this  IEP "likely  would have  yielded more  positive          academic results than did the previous IEPs."  The district court          further found that the IEP proposed for 1987-88 was substantially          similar  to the  1986-87 IEP.   The  court acknowledged  that due          weight  must be accorded the decision of the hearing officer, but          found that reversal of  the administrative decision was warranted          because the preponderance of the evidence indicated that the IEPs          for  the  1986-87  and  1987-88  school  years  offered  programs          reasonably calculated to yield  educational benefits in the least          restrictive environment.                                    Trial-Level Review                                  Trial-Level Review               The  Act provides that, in reviewing the decision of a state          hearing officer, the district court "shall receive the records of          the administrative proceedings, shall hear additional evidence at          the  request  of  a  party,  and,  basing  its  decision  on  the          preponderance of  the evidence,  shall grant such  relief as  the          court determines is appropriate."   20 U.S.C.   1415(e)(2).   The          role  of the  district court is  to render  "bounded, independent          decisions -- bounded by  the administrative record and additional          evidence,  and  independent  by  virtue  of  being  based   on  a          preponderance  of  the evidence  before  the  court."    Town  of                                                                   ________          Burlington  v. Department of Educ.,  736 F.2d 773,  791 (1st Cir.          _________________________________          1984),  aff'd,  471  U.S. 359  (1985).    "While  the court  must                  _____          recognize the expertise of  an administrative agency, as  well as          that of  school officials, and  consider carefully administrative                                          7          findings, the precise  degree of deference  due such findings  is          ultimately 'left to the discretion of the trial court.'"  G.D. v.                                                                    _______          Westmoreland   Sch.  Dist.,   930   F.2d  942,   946  (1st   Cir.          _________________________          1991)(quoting Burlington, 736 F.2d at 792).                        __________               In reviewing the administrative determination under the Act,          a  district court is required  to address two  questions aimed at          the  school's compliance  with  the  procedural  and  substantive          requirements of the Act:               First, has  the State complied with  the procedures set               forth in the Act?                 Second, is the  individualized educational program developed               through the Act's procedures reasonably calculated to enable               the child to receive educational benefits?          Board of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982).          ________________________               The  court below  declined  to address  the first  question,          stating that the Dobrowolskis had "provided no examples or  proof          of any [procedural] violations."   Addressing the second prong of          the test, the district court concluded that the  preponderance of          the evidence showed  that the  IEPs offered for  the 1986-87  and          1987-88 school years were  appropriate, and reversed the decision          of the administrative officer.                                   Appellate Review                                   Appellate Review               The  district court's  determination of  whether an  IEP was          appropriate  is a  mixed  question of  law and  fact.   "[I]n the          absence of a mistake of law, the court of appeals should accept a          district  court's resolution  of  questions  anent  adequacy  and          appropriateness  of an IEP so long as the court's conclusions are          not clearly  erroneous on the record  as a whole."   Roland M. v.                                                               ____________                                          8          Concord Sch. Comm., 910  F.2d 983, 990-91 (1st Cir.  1990), cert.          _________________                                           ____          denied,       U.S.      , 111  S.Ct. 1122  (1991).  If  the trial          ______   ____       ____          court's findings were  based on  a mistake of  law, however,  the          reviewing court is not bound by the "clearly erroneous" standard.          LoVuolo v. Gunning, 925 F.2d 22, 25 (1st Cir. 1991).          __________________                          District Court's Factual Findings                          District Court's Factual Findings               The  district  court  committed no  mistake  of  law in  its          assessment  of the  appropriateness of  the  proposed IEPs.   The          court properly  articulated the governing legal  issue as whether          the IEPs "guarantee  some 'reasonable probability of  educational          benefit  with sufficient supportive  services at  public expense'          ...  in the least restrictive  environment."  The  program at the          Learning  Skills Academy may have  provided Michael with a better          education than that offered by the public school.  As long as the          IEPs proposed  by Hampton  met the  minimum  federal standard  of          appropriateness,  however,  the  Act   does  not  require  school          districts to  reimburse parents  who choose a  superior placement          for their  child.  G.D. v. Westmoreland Sch. Dist., 930 F.2d 942,                             ______________________________          948-49 (1st  Cir. 1991).    Our task, therefore, is  to determine          whether the  district court  committed clear error  in concluding          that the IEPs Hampton offered were appropriate.               The Dobrowolskis  assert that the district  court's judgment          is invalid due to certain erroneous findings of fact.  Our  focus          is  on  whether  the   evidence  supports  the  district  court's          conclusion that Hampton's IEPs for the 1986-87 and 1987-88 school          years were  reasonably calculated to  confer educational benefits                                          9          in the least  restrictive environment.   If the district  court's          ultimate conclusion regarding the  appropriateness of the IEPs is          not  clearly erroneous, we will not reverse that judgment even if          there were technical  errors that do  not affect the  substantial          rights of the parties.   See Sugarman v. Sugarman, 797 F.2d  3, 9                                   ___ ____________________          (1st Cir.  1986); 28 U.S.C.    2111.  "'Where  the conclusions of          the [trier] depend on its election among conflicting facts or its          choice  of which  competing  inferences to  draw from  undisputed          basic facts, appellate courts should defer to such fact-intensive          findings,  absent  clear error.'"    Reliance  Steel Products  v.                                               ____________________________          National  Fire  Ins.  Co., 880  F.2d  575,  576  (1st Cir.  1989)          _________________________          (quoting Irons v. Federal Bureau of Investigation, 811  F.2d 681,                   ________________________________________          684 (1st Cir. 1987)).  Thus, the specific factual findings of the          district court  are to be set  aside only if, upon  review of the          entire  record, we are left with the definite and firm conviction          that a mistake has been committed.               Our  review  of the  record as  a  whole indicates  that the          district  court  did  not  commit clear  error.    The  following          evidence presented to the  district court supports its conclusion          that  the IEPs Hampton offered for the 1986-87 and 1987-88 school          years were appropriate:               First, there  was evidence of Michael's  progress at Hampton          during the first quarter of fifth grade.  This was achieved  with          minimal   resource    room   support   and    minimal   classroom          modifications.                                          10               Second, there  was evidence  that Michael's  problems during          the remainder of fifth grade centered around inattention, lack of          motivation, and failure to complete homework assignments.               Third, the IEPs  Hampton offered for  the sixth and  seventh          grades offered more services than the IEPs  which governed during          the  fifth grade,  and addressed  the attention,  motivation, and          homework issues.               Fourth,  school district  witnesses testified  that children          with disabilities similar  to or more severe  than Michael's have          made educational  progress at Hampton in programs  similar to the          programs offered to Michael in the 1986-87 and 1987-88 IEPs.               Fifth,  that  testimony  was  corroborated  by  professional          literature   indicating  that  children  with  mild  to  moderate          learning  disabilities  generally  make as  much  educational and          emotional  progress  in  mainstream or  mainstream/resource  room          programs,  with  adequate support,  as  in  full time  segregated          classes or private schools devoted to children with disabilities.               Finally, evidence was introduced to show that the IEPs which          Hampton offered Michael for the 1986-87 and 1987-88 school  years          reflected  an  established method  for  controlling an  attention          deficit disorder without medication.                 In light of the  foregoing evidence, we cannot say  that the          district court committed clear error in concluding  that the IEPs          Hampton offered were appropriate.   The specific factual findings          to which the Dobrowolskis attempt to assign error either were not          clearly  erroneous or were  not integral to  the court's ultimate                                          11          conclusion regarding the appropriateness of the IEPs.  There  was          sufficient  additional  evidence  before the  district  court  to          support its ultimate finding regarding the appropriateness of the          IEPs.                                          12                                Procedural Compliance                                Procedural Compliance               The  Dobrowolskis  assign  error  to  the  district  court's          refusal to address their assertion that Hampton failed  to comply          with  the procedural requirements of the Act.  The district court          disposed  of   the   Dobrowolskis'  allegations   of   procedural          violations as follows:               Defendants  allege  that   Hampton  failed  to   follow               procedures  required by the  Act.   However, defendants               have  provided  no  examples   or  proof  of  any  such               violations and the court will not sua sponte search the                                                 __________               record  for procedural  errors.   Hence, this  argument               will not be addressed.               Claims   of   procedural   errors  not   presented   to  the          administrative  hearing officer  are not  preserved for  judicial          review by the trial court.  David D. v. Dartmouth Sch. Comm., 775                                      ________________________________          F.2d 411, 424 (1st Cir. 1985),  cert. den., 475 U.S. 1140 (1986).                                          __________          Claims  not articulated to the district court cannot be raised on          appeal, even if they had been pressed before the hearing officer.          G.D.  v. Westmoreland  Sch. Dist.,  930 F.2d  942, 950  (1st Cir.          ________________________________          1991).    We  doubt  the  correctness  of  the  district  court's          refusal  to review  the  Dobrowolskis' procedural  claims on  the          ground they were not specific enough in raising these claims.  It          is  true  that the  Dobrowolskis did  not  stress their  claim of          procedural noncompliance  to the  district court, and  that their          trial brief did  not provide any specific  examples of procedural          violations, but the pleadings before the district court contained          more  than the  "barest inference"  of their  claim. See  Wallace                                                               ___  _______          Motor Sales v. American  Motors Sales Corp., 780 F.2d  1049, 1067          ___________________________________________          (1st Cir. 1985).  In their Memorandum of Fact and  Law in support                                          13          of  Motion  for  Summary Judgment,  the  Dobrowolskis  enumerated          several specific examples of procedural  noncompliance, discussed          the  law supporting their claims, and  cited to specific evidence          in the record and to the hearing officer's decision.  Their trial          brief  directed  the  court's   attention  to  pleadings  in  the          administrative   record  which   recited  their   contentions  of          procedural noncompliance  in detail.   Their attorney  raised the          issue  of procedural violations  at the hearing  before the trial          court judge.               Therefore,  we  have reviewed  the  Dobrowolskis'  claims of          procedural violations but have determined that even if the claims          were  not waived,  the  district court's  failure to  address the          issues is not grounds for reversal.  The procedural flaws alleged          by the Dobrowolskis did not  render the challenged IEPs  invalid.          An  IEP will be set aside for procedural violations only if there          is "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."  Roland  M. v. Concord  Sch. Comm., 910 F.2d  983, 994                      ________________________________          (1st Cir.  1990) , cert.  denied,      U.S.     ,  111 S.Ct. 1122                             ____   ______  ____      ____          (1991).  A number of the Dobrowolskis' claims refer to actions of          Hampton that occurred well before the 1986-87  and 1987-88 school          years, such as their  mishandling of Michael's records and  their          failure to provide needed services in the fall  of 1985.  Because          these  alleged  procedural  violations  occurred  outside  of the                                          14          relevant time frame,  they cannot provide  the basis for  setting          aside the IEPs at issue.               Those  flaws argued by the Dobrowolskis  that do address the          1986-87  and  1987-88 IEPs  also  fail  to  provide  grounds  for          reversal.   Although the IEPs may  have been written by  a single          member of Michael's IEP team, the record indicates that they were          developed  through  a  team  effort  which  included  input  from          Michael's parents and former teachers.  It is permissible for one          person to draft the IEP as long as the parents are not denied the          opportunity  to participate, and the members of the IEP team have          an opportunity to discuss and amend the IEP.  Roland M., 910 F.2d                                                        _________          at 994; see also 34 C.F.R. Part 300 App.C,   55.                    ________               The  Dobrowolskis'  also argue  that  reversal is  warranted          because   Hampton  had  determined   Michael's  placement  before          developing his IEP, in violation of regulations promulgated under          the Act which require a student's  placement to be "based on" the          IEP.   34 C.F.R.  300.552(a)(2).  This argument must fail because          the procedural inadequacy alleged did not result in a deprivation          of Michael's right to an appropriate education or of the parents'          right to  participate in the IEP process.   In summary, any error          committed by  the  district  court  in refusing  to  address  the          Dobrowolskis' claims of procedural violations was harmless.                                   Burden of Proof                                   Burden of Proof               The  burden of proof at trial was  on the school district as          the party challenging the hearing officer's decision.  See Roland                                                                 ___ ______          M., 910 F.2d at 991.  The district court specifically stated that          __                                          15          it was placing the burden on the school district.   We reject the          Dobrowolskis'  contention that  the district  court actually  did          something other than that which it said it was doing.                         Admission of Deposition Transcripts                         Admission of Deposition Transcripts               Although the Dobrowolskis arguably are correct in contending          that  the district  court committed  error when it  admitted into          evidence the discovery  depositions of Dr.  Clara Maslow and  Dr.          George  Storm, we  need not  decide the  point because  the trial          court ultimately disregarded this evidence.   In its trial brief,          Hampton relied  on the trial deposition  transcripts to criticize          the reports of Maslow and Storm, the Dobrowolskis' experts, which          had been  admitted in the  administrative hearing.   The district          court responded to those arguments in a footnote which reads:               The School District has criticized the Storm and Maslow               reports and claims their  evaluations were faulty.  The               court  finds  these  criticisms  immaterial  given  the               relatively little  weight assigned to  [the reports] by               the hearing  officer.   Furthermore, even  assuming the               complete accuracy of those reports, the court finds the               IEPs offered by Hampton were appropriate.          This  is  the only  reference the  court  made to  the deposition          transcripts.  It  is clear  from the court's  statement that  the          deposition   transcripts   were   unnecessary   to   the  court's          determination concerning  the appropriateness  of the IEPs.   Any          error committed in the admission of the transcripts was harmless.          See Puerto Rico Ports Auth. v. M/V Manhattan Prince, 897 F.2d  1,          ___ _______________________________________________          8  (1st Cir. 1990) (finding  error harmless based  on footnote in          district court's  decision stating  that trial court  had ignored          erroneously admitted report).                                          16               Having  considered   all  of  the  arguments   made  by  the          appellants, we  have determined that  the district court  did not          commit reversible error.               Affirmed.               ________                                          17
