Rome School Committee v. Mrs. B.

United States Court of Appeals
For the First Circuit
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No. 00-1746
No. 00-1763
No. 00-1870
ROME SCHOOL COMMITTEE,
Plaintiff, Appellee,
v.
MRS. B.,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
____________________
Before
Boudin, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lynch, Circuit Judge.
____________________
Richard L. O'Meara, with whom Krista N. Everly and Murray, Plumb
& Murray were on brief, for appellant.
Eric R. Herlan, with whom Drummond Woodsum & MacMahon was on
brief, for appellee.

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____________________
April 26, 2001
____________________

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LYNCH, Circuit Judge. This appeal is brought by Mrs. B., the
mother of a troubled boy, DC, whom she placed in a private residential
school in 1998 after rejecting the public school's proposed
Individualized Education Plan. That IEP instead proposed mainstreaming
the child into the local school for the 1998-99 school year. A hearing
officer found the proposed IEP from the Rome School Committee for that
year as well as the IEP proposed for the 1999-2000 school year to be
inadequate under the Individuals With Disabilities Education Act, 20
U.S.C. §§ 1400-1491, and ordered Rome to reimburse Mrs. B. for the
private school placement for those two years.
In the school system's suit challenging the hearing officer's
determination, the district court concluded, as had the reviewing
magistrate judge, that the hearing officer was wrong on the substance
-- that the IEPs were adequate. Nonetheless, the district court,
following precedent that a parent may rely on the hearing officer's
determination, held that Mrs. B. did not have to reimburse Rome for
payments it had made for the tuition and related expenses in those two
years. See Town of Burlington v. Dep't of Educ., 736 F.2d 773, 800-01
(1st Cir. 1984) ("Burlington II"), aff'd, 471 U.S. 359 (1985). This
holding was independent of the holding on the adequacy of the IEPs.
Mrs. B. has appealed. The school system has not. And DC,
apparently, continues at the private school, although we have nothing
in the record on that point or on any later IEPs the school system may

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1 Put another way, neither the district court nor the hearing
officer concluded that the reason Rome should bear the costs for the
two years of residential placement was that this placement was the
required "free appropriate public education" for DC. The reimbursement
order was based on different grounds and has not been appealed. Even if
the reimbursement order had been appealed, the issue identified above
would not have necessarily been resolved.
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have proposed. The purpose of Mrs. B.'s appeal, in large part, is to
be certain Rome cannot obtain reimbursement from her for the two school
years, 1998-2000. But there is no issue as to that, because Rome does
not appeal. Reimbursement is a different question than the merits of
the IEPs. Indeed, the IEPs proposed for the 1998-99 and 1999-2000
school years could have been adequate, but Mrs. B. still would not have
to reimburse Rome the tuition money it paid for those years. See
Burlington II, 736 F.3d at 800-01 (school is estopped from seeking
reimbursement from parent for school year covered by agency's decision
ordering reimbursement).1 Because there is no controversy as to
reimbursement, the adequacy of past IEPs is not before us. There is a
question, then, as to what remains before us.
We do not view the question of the IEP or the payment for the
current school year (2000-2001) as properly before us, as all of the
record evidence concerns a dispute about the prior two years.
Nonetheless, both parties assume that this court's view of the adequacy
of the IEPs for the two years, 1998-99 and 1999-2000, will have a
material bearing on any questions as to obligations of the school
system for the year 2000-2001, which soon concludes, and possibly

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2 The question of the procedural irregularities found by the
hearing officer and discounted by the district court will not recur.
Nonetheless, we comment that the hearing officer appears to have
improperly read Maine procedural law.
We have considered Mrs. B.'s argument that the district court
unlawfully referred her case for a recommended decision by the
magistrate judge, but we found it to be utterly without merit.
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future years.
Issues arising from past IEPs often circumvent the mootness
doctrine because fundamental disputes over the correct interpretation
of the IDEA as to a particular student are "capable of repetition as to
the parties before it yet evading review." Board of Educ. v. Rowley,
458 U.S. 176, 186 n.9 (1982); see also Daniel R.R. v. State Bd. of
Educ., 874 F.2d 1036, 1041 (5th Cir. 1989) ("Given the parties
irreconcilable views on the issue, whether to and to what extent to
mainstream [the child] will be an issue every time [the school
district] prepares a new placement or IEP or proposes to change an
existing one.") (citing Honig v. Doe, 484 U.S. 305, 318-20 (1988));
Sacramento City Unified Sch. Dist., Bd. of Educ. v. Rachel H., 14 F.3d
1398, 1403 (9th Cir. 1994). Such controversies are likely to evade
review because the "administrative and judicial review of an IEP is
'ponderous' and usually will not be complete until a year after the IEP
has expired." Daniel R.R., 874 F.2d at 1041 (citing Burlington, 471
U.S. at 370).2
A common feature of these cases involving IDEA disputes
capable of repetition yet evading review is the possibility that the

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school district would continue to adhere to a policy that violates the
IDEA. In Daniel R.R., for example, the court resolved differing
interpretations of the IDEA's requirement that learning disabled
students should be educated in the general curriculum -- the
"mainstreaming requirement." 874 F.2d at 1040-41. In Honig, the
Supreme Court ruled that an action concerning whether a school had
authority under the Act to unilaterally change a student's placement
was not moot because there was "a sufficient likelihood" that the
controversy would recur. 484 U.S. at 322-23.
The core of the controversy between Mrs. B. and Rome over the
adequacy of the IEP involves the extent of DC's needs for behavior
management services, a dispute which includes both questions of fact
and interpretations of the IDEA. The contours of any factual dispute
change shape as the years go on. Indeed, the IDEA recognizes that
children's needs change over time, and it thus requires annual
evaluation and development of an IEP for each school year. But the
parties' irreconcilable views on the extent to which the IDEA requires
a school to provide services to address a learning disabled child's
behavior problems is a controversy that is likely to recur as Rome
proposes new IEPs. Thus, we pause briefly to clarify a few points, not
as a ruling on the merits of past IEPs nor as a suggestion of a proper
placement for future school years, but to indicate the factors to be
included in a proper analysis under the IDEA.

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States accepting federal funding must assure all learning
disabled children the right to a "free appropriate public education,"
20 U.S.C. § 1400(d)(1)(A), by providing "access to specialized
instruction and related services . . . individually designed to provide
educational benefit to the handicapped child," Rowley, 458 U.S. at 201.
Under the requirement of access to "related services," a school
district's special education program must include psychological
services if a learning disabled child's emotional disturbances
interfere with his ability to learn. See Roland M. v. Concord Sch.
Comm., 910 F.2d 983, 991-92 (1st Cir. 1990); 20 U.S.C. § 1401(3)
(defining the term "child with a disability"); 20 U.S.C. § 1401(22)
(listing "psychological services, . . . social work services, [and]
counseling services" as "related services"). The IDEA recognizes that
a "serious emotional disturbance" constitutes a disability if "by
reason thereof, [the child] needs special education and related
services." Id. § 1401(3)(A).
The hearing officer and the magistrate judge recognized that
behavior management services fall within the scope of services a school
district may be required to provide under the IDEA. But they differed
on the question whether DC's behavior interfered with his ability to
obtain educational benefit, and therefore the proper level of services
that should be addressed to DC's behavior needs. The magistrate judge
concluded that DC's behavior problems manifest themselves most

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3 Language in the magistrate judge's opinion suggests the view
that unless the child "was uncontrollable both in and out of school,"
thus "rendering him uneducable," the behavior does not need to be
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frequently outside of school, and thus found adequate the level of
behavior management services in Rome's special education program.
There are some facts in the record, important to the hearing
officer, not accounted for in the magistrate judge's legal conclusions.
The district court must consider the state agency's findings carefully
and "endeavor to respond to the hearing officer's resolution of each
material issue." Burlington II, 736 F.2d at 792. For example, there
is ample evidence that DC's behavior problems did spill over into
school, interfering with his ability to obtain educational benefit.
Indeed, DC's third-grade teacher in April 1997 was so concerned about
DC's behavior management that he requested DC be given a one-to-one
aide for those purposes. The hearing officer cited several instances
of aggressive behavior by DC while in school, including hitting other
students, destroying property (including destroying playground
equipment with the consequent risk of injury to others), and, most
alarming, twice bringing a nine-inch buck knife to school. That
evidence factored heavily in the hearing officer's decisions and was
relevant to the determination of whether the services offered in Rome's
proposed IEPs were adequate. If the failure of the magistrate judge to
address in the legal analysis these aspects of DC's behavior issues
reflected a view that this evidence was not relevant,3 then that view

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addressed in the IEP. We know of no such rule. The question is
whether these behavioral disturbances interfered with the child's
ability to learn. See Roland M., 910 F.2d at 991-92.
4 Before the state hearing on the 1999-2000 IEP, an
alternative placement for DC became available at the Swasey School, a
private, state-approved special education school in Maine. The Swasey
School provides access to the general curriculum to students who are
experiencing difficulties (similar to DC's) in their present
educational setting and focuses on treating those behaviors that
interfere with the child's ability to learn. The parties have not yet
had the opportunity to fully consider that option.
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was in error.
Unless DC has made progress on managing his behavior from the
prior years, it is likely that any IEP must define the related services
DC requires in order to receive a free appropriate public education.4
There is a built-in flexibility in the statute's lack of precision, and
these types of determinations are better made by those involved in
designing a program tailored to meet a child's unique needs: the
members of the pupil evaluation team and Mrs. B.
Still, this does not mean the residential placement Mrs. B.
has settled on is required or that any residential placement is
required. Both the hearing officer and the district court concluded
that the placement at this residential school was not required. Even
if DC has since made academic progress at his residential school, that
fact does not establish that such a placement comprises "the requisite
adequate and appropriate education." Roland M., 910 F.2d at 990
(internal quotation marks omitted). All the school system must provide

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5 The hearing officer endorsed Mrs. B.'s unilateral placement
of DC only after finding that Rome had failed to provide DC with an
adequate educational program. That is a different issue, and one
viewed more favorably to the parent, than the question whether this
residential placement was required in order to provide a free
appropriate education to DC. See Burlington II, 736 F.2d at 799-801;
Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-13 (1993).
We note that our decision in Burlington II rested on our determination
that retrospective reimbursement by parents is not "appropriate" relief
available under the IDEA where parents have relied on an agency's
decision in their favor. Otherwise, "parents will be placed in the
difficult position of having to choose between the state directive to
maintain the child in the private placement at the risk of ultimately
using their own funds, or of moving the child to the town's placement
which the state agency has determined to be inadequate," which would
contravene the IDEA's stay-put provision. 736 F.2d at 800.
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is an IEP which is "reasonably calculated" to provide an "appropriate"
education, as defined by the common standard in Maine and federal law.
Id. at 992. And within that context, Congress has in the IDEA
expressed a preference for mainstreaming. "Mainstreaming may not be
ignored, even to fulfill substantive educational criteria." Id. at
992-93.
The child, DC, is now in a different position than in
previous proceedings: the IDEA's "stay put" provision, a preference for
maintaining a child in his current placement throughout both the
administrative and judicial proceedings challenging a placement
decision, no longer applies because this judicial proceeding terminates
with this opinion. See Doe v. Brookline Sch. Comm., 722 F.2d 910, 915
(1st Cir. 1983).5 The IDEA requires Rome to generate an annual IEP
based on DC's current needs. If the parties cannot reach an agreement,

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they may then pursue the appropriate remedies as provided by the IDEA.
We make one final point. Congress mandated a system under
the IDEA of considerable involvement by parents together with school
systems in formulating IEPs. Judges are not experts on educational
theory. The education of DC will be best served by Mrs. B. and Rome
working together.
We dismiss Mrs. B.'s appeal. No costs are awarded.

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