Moakley Courthouse4_Carousel_0

Bill’s Blog: 1st Circuit Special Education Cases You Need to Know

by Bill Crane, Esq.

Bill Crane is Of Counsel to Massachusetts Advocates for Children. He works with other MAC attorneys on systemic special education issues, consults to attorneys representing low-income parents and students in special education disputes, and writes occasional postings for the MAC blog. 

Bill was a Hearing Officer at the Bureau of Special Education Appeals from 1999 to 2014.


This is the second of what will be a (more or less) monthly posting on special education law and practice. In the September posting, I reviewed the United States Supreme Court’s first special education decision (Rowley), and then briefly covered all of the remaining Supreme Court decisions pertaining to special education.

In this posting, I provide an overview of all of the First Circuit special education decisions that I am aware of. For obvious reasons, at least a general knowledge of these decisions is essential to understanding not only how the First Circuit may handle a future special education dispute, but also how a Massachusetts federal district court judge or a Bureau of Special Education Appeals (BSEA) hearing officer may interpret the law in such a dispute.

What I have provided below is not intended to be a comprehensive analysis of each decision. Rather, for each decision, I have highlighted one or more points that seem to me to be noteworthy. Understandably, others may read these same decisions and find other aspects to be equally or more important. Thus, there is no substitute for reading each of these decisions in its entirety.

In subsequent postings, I will discuss specific areas of special education law as well as a variety of court decisions, state law and regulations. I will attempt to include practice suggestions that may be helpful to parties appearing before the BSEA.

Reader feedback is most welcome, particularly any suggestions as to how these postings could be improved, including what other areas of special education law or practice I might address in the future.

Readers may contact Bill directly at bcrane@massadvocates.org

The three most recent decisions:

The First Circuit’s most recent special education decision is Lebron v. Commonwealth of Puerto Rico, 2014 WL 5326513 (1st Cir. 2014) in which a disabled student and her parents brought suit, seeking monetary damages from Puerto Rico, its department of education, and private school alleging discrimination and retaliation. The Court dismissed all of the claims. The decision provides little new guidance regarding special education law but illustrates some of the legal challenges in bringing a damages action in a special education dispute.

The First Circuit’s next most recent special education decisions were in 2012. These two decisions each address important aspects of a claim regarding a free appropriate public education (FAPE) – an issue that is often central to a special education dispute. The two decisions are Sebastian M. v. King Philip Regional School Dist., 685 F.3d 79 (1st Cir. 2012) and D.B. v. Esposito, 675 F.3d 26 (1st Cir. 2012).

Importantly, both decisions make clear that the First Circuit will likely use a meaningful benefit standard in evaluating FAPE claims. In Sebastian, the Court stated: “an IEP need not be designed to furnish a disabled child with the maximum educational benefit possible. To comply with the IDEA, an IEP need only be reasonably calculated to confer a meaningful educational benefit.” Similarly, in D.B., the Court held that “to comply with the IDEA, an IEP must be reasonably calculated to confer a meaningful educational benefit.” Over the years, as will be discussed below, the First Circuit has articulated in different ways the requisite benefit needed to comply with FAPE; perhaps it has now settled on a meaningful benefit standard.

Sebastian is also noteworthy as a reminder of the critical importance of persuading a BSEA hearing officer that your experts are both credible and persuasive. On appeal, a court is likely to give significant deference to the hearing officer on this aspect of the dispute. The First Circuit explained: “The valuation of expert testimony is precisely the sort of first-instance administrative determination that is entitled to judicial deference by the district court.”

This is not to say that a court will always give complete deference to a hearing officer’s assessment of the weight to be given to an expert’s testimony, but in this particular dispute, the Court found that it was reasonable to do so for the following reasons. The parent had two experts – a neuropsychologist and an educational consultant. The Court noted that both of these experts had “spent relatively little time with [Student]”; that the neuropsychologist “never consulted [Student’s] teachers or reviewed his schoolwork”; and that the educational consultant “never formally evaluated [Student] or observed him at BICO.”

It is, of course, normally impossible for a parent’s experts to spend more than a relatively small amount of time with a student, as compared with those experts typically testifying for a school district (for example, the student’s teachers and therapists). But, this decision points to the critical importance of a parent’s expert making every effort to observe the student at school, review the student records and schoolwork, and talk to the student’s teachers to demonstrate to the hearing officer that the expert understands and has taken into account the observations and perspective of student’s teachers (and others) who work closely with student at school.

In D.B., the First Circuit addressed, most comprehensively to date, the importance of gauging the educational benefit from an IEP in relation to the student’s educational potential. The Court noted that “children of different abilities are capable of different achievements” and then cited with approval a Sixth Circuit decision stating that “[o]nly by considering an individual child’s capabilities and potentialities may a court determine whether an educational benefit provided to that child allows for meaningful advancement.” The First Circuit also noted that the BSEA “has incorporated this view into its proceedings.”

It is also noteworthy that in this particular case, the First Circuit found that the student’s educational potential is “unknowable”. The Court went on to explain that when this occurs, a student’s “IEP still could be reasonably calculated to confer a meaningful educational benefit if it is closely modeled on a previous IEP pursuant to which the child made appreciable progress. …. [I]f the two IEPs are substantially similar in design, that similarity provides a reasonable basis for assessing the likelihood of future progress.” The Court is essentially advising us that in virtually any FAPE dispute, evidence of progress (or lack of progress) under a previous, substantially similar IEP will be relevant.

Previous decisions:

I now briefly review, in reverse chronological order, the remaining First Circuit decisions regarding special education disputes.

Lessard v. Wilton Lyndeborough Cooperative School Dist., 518 F.3d 18 (1st Cir. 2008) addressed, for the first time and only time so far, transition services. The Court concluded that FAPE principles apply in the determination of the appropriateness of transition services. The Court also found that transition services must be considered “in the aggregate and in light of the child’s overall needs.” “The test is whether the IEP, taken in its entirety, is reasonably calculated to enable the particular child to garner educational benefits.” The Court also noted that the IDEA does not require a “stand-alone” transition plan; it was sufficient that appropriate transition services were “integrated throughout the IEP’s various components.” Subsequently, a Massachusetts federal district court considered the parameters of transition services in light of the Lessard decision. See Dracut School Committee v. Bureau of Special Educ. Appeals of the Massachusetts Dept. of Elementary and Secondary Educ., 737 F.Supp.2d 35 (D.Mass. 2010) which upheld, in part, a BSEA decision awarding transition services to the student (In Re: Dracut, BSEA # 08-5330, 15 MSER 78 (3/13/09)).

C.G. ex rel. A.S. v. Five Town Community School Dist., 513 F.3d 279 (1st Cir. 2008) provides a cautionary tale to parents who, in the Court’s eyes, make a “unilateral choice to abandon the collaborative IEP process without allowing that process to run its course.” The Court explained that a successful reimbursement claim is “contingent upon a showing that the parents diligently pursued the provision of appropriate services from the public school system.” The Court concluded that they had not done so in this dispute because “the parents’ actions disrupted the IEP process, stalling its consummation and preventing the development of a final IEP.”

The Court also described compensatory services using language that is sometimes picked up by lower courts and BSEA hearing officers: “Compensatory education is a surrogate for the warranted education that a disabled child may have missed during periods when his IEP was so inappropriate that he was effectively denied a FAPE.” Of course, compensatory services may also be awarded for failure to implement an IEP.

Mr. I. ex rel. L.I. v. Maine School Admin. Dist. No. 55, 480 F.3d 1 (1st Cir. 2007) is an important decision regarding IDEA eligibility, focusing on the question of whether the student satisfied the definition of “child with a disability”. The decision provides an excellent example of a court using state educational standards (in this case, Maine regulations broadly defining “educational performance”) to find eligibility based upon non-academic deficits. (Massachusetts special education regulatory standards for eligibility similarly use a term “progress effectively in the general education program” to include documented growth in social/emotional development. See 603 CMR 28.02(17).) The decision also includes extensive discussion of the IDEA’s requirement that with respect to certain disabilities, the student’s disability must “adversely affect[ ] a child’s educational performance.”

This decision also explains, in the most comprehensive way to date, the requisites of a parent’s unilateral placement in order for the parent to prevail in a reimbursement dispute. The Court held that “a private placement need provide only some element [emphasis in original] of the special education services missing from the public alternative in order to qualify as reasonably calculated to enable the child to receive educational benefit. Nor must the placement meet every last one of the child’s special education needs. But the reasonableness of the private placement necessarily depends on the nexus between the special education required and the special education provided.” 

The Court also reiterated its position that the “IDEA entitles qualifying children to services that target all of their special needs, whether they be academic, physical, emotional, or social.” The Court also noted “the broad purpose behind the IDEA: to ensure that all children with disabilities have available to them a free and appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”

Diaz-Fonseca v. Puerto Rico, 451 F.3d 13 (1st Cir. 2006) provides the following guidance regarding reimbursement claims: “As the term ‘reimbursement’ suggests, tuition reimbursement is a backward-looking form of remedial relief; reimbursement merely requires the defendant to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP. It goes without saying that those ‘expenses’ must be actual and retrospective, not anticipated. Indeed, this reasoning is at the heart of the distinction, recognized by this court, between ‘tuition reimbursement’ and ‘compensatory education.’”

Smith v. Fitchburg Public Schools, 401 F.3d 16 (1st Cir. 2005) held that BSEA pre-hearing orders “that hastened the final resolution of [Student’s] claim by private settlement did not provide sufficient judicial imprimatur on [Student’s] relief to make her a prevailing party” for purposes of obtaining attorney fees from the school district.

Ms. M. v. Portland School Committee, 360 F.3d 267 (1st Cir. 2004) provides a useful discussion of the language within the IDEA that provides that a parents’ reimbursement claim may be reduced or denied if parents do not provide notice that they were rejecting the placement proposed by the school district (including stating their concerns and their intent to enroll their child in a private school at public expense) either during the most recent IEP meeting prior to removal of the student from public school or at least ten business days prior to removal of the student from public school.

As a practical matter, failure to provide the requisite notice does not necessarily mean that a reimbursement claim will be reduced or extinguished, but if a school district can demonstrate that the failure to provide notice prejudiced its ability to satisfy the purpose of the notice requirement, one may expect that the reimbursement claim will be reduced or denied on this basis. In an earlier decision (Greenland School District v. Amy N., 358 F.3d 150 (1st Cir. 2004)), the First Circuit explained the purpose of the notice requirement as follows: This [notice requirement] serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a free appropriate public education can be provided in the public schools.

Also, in the Portland decision, the Court distinguished between compensatory and reimbursement claims: “Reimbursement is a matter of equitable relief.” “Given that Congress has imposed statutory restrictions on the equitable remedy of tuition reimbursement that are directly applicable here, allowing Ms. M. to pursue a compensatory education claim for tuition reimbursement would undercut the statute. Moreover, when this court has used the term ‘compensatory education,’ it has usually assumed that the remedies available involve prospective injunctive relief, which would not encompass tuition reimbursement.” It is also noteworthy, however, that a federal district court within the First Circuit has considered this limiting language and concluded that it “stand[s], at most, for the proposition that when the parents fail a required element of the tuition reimbursement remedy, they are not entitled to reimbursement under the label of compensatory education.” See Regional School Unit 51 v. Doe, 920 F.Supp.2d 168, 209 (D.Me. 2013).

T.B. v. Warwick School Committee, 361 F3d. 80 (1st Cir. 2004) reaffirmed that the Supreme Court’s decision in Rowley continues to be good law in the First Circuit, explaining that the “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.” Citing Rowley, the First Circuit also noted that “courts are ill-equipped to second-guess reasonable choices that school districts have made among appropriate instructional methods.” What this means is that so long as the school district’s proposed services and placement meet the requisite legal standards under the IDEA, the school district is not required to offer any different or alternative services or placement even if those services or placement would better serve the student.

Greenland v. Amy N., 358 F.3d 150 (1st Cir. 2004) concluded that tuition reimbursement is only available for children who have previously received “special education and related services” while in the public school system or “perhaps those who at least timely requested such services while the child is in public school.”

Doe v. Boston, 358 F.3d 20 (1st Cir. 2004) held that the Supreme Court’s Buckhannon decision applied to fee-shifting provision of IDEA. As a result, the student, who reached a private settlement with school district regarding her IEP, could not be considered a “prevailing party,” and, as such, could not recover attorney fees under IDEA.

Nieves–Marquez v. Puerto Rico, 353 F.3d 108 (1st Cir. 2003) concluded that the only monetary awards available under the IDEA are “[a]wards of compensatory education and equitable remedies that involve the payment of money, such as reimbursements to parents for expenses incurred on private educational services to which their child was later found to have been entitled”. “[T]ort-like money damages” are not within the scope of appropriate relief under the IDEA, because the “IDEA’s primary purpose is to ensure FAPE, not to serve as a tort-like mechanism for compensating personal injury.”

The Court also provided the following guidance regarding accrual of claims for purpose of the IDEA’s two-year statute of limitations: “The time at which this claim began to accrue is an issue of federal, not local, law. Under federal law, the time of accrual of a civil rights action is when the aggrieved party knows or has reason to know of the injury which is the basis for his action or when facts supportive of a civil rights action are or should be apparent to a reasonably prudent person similarly situated.”

Maroni v. Pemi-Baker Regional School Dist., 346 F.3d 247 (1st Cir. 2003) concluded that “parents are ‘parties aggrieved’ within the meaning of IDEA … and thus may sue pro se … regardless of whether the rights asserted are procedural or substantive.”

Maine Sch. Ad. D. No. 35 v. MR. & MRS. R., 321 F.3d 9 (1st Cir. 2003) found that “a child eligible for special education services under the IDEA may be entitled to further services, in compensation for past deprivations, even after his or her eligibility has expired. 

Rafferty v. Cranston Public School Committee, 315 F.3d 21 (1st Cir. 2002) made clear that simply because a student makes academic progress at a parent’s unilateral placement, “that fact does not establish that such a placement comprises the requisite adequate and appropriate education” for purposes of a reimbursement claim.

Frazier v. Fairhaven School Committee, 276 F.3d 52 (1st Cir. 2002) concluded “that plaintiffs who bring an IDEA-based claim under 42 U.S.C. § 1983, in which they seek only money damages, must exhaust the administrative process available under the IDEA as a condition precedent to entering a state or federal court.” A practitioner, who seeks to understand this principle and how it applies to a particular dispute, should also review the several subsequent federal district court decisions in Massachusetts and a variety of BSEA decisions and rulings that have charted out the parameters of this exhaustion requirement. See, e.g., In Re: CBDE, BSEA # 10-6854, 17 MSER 43 (2/24/11) and cases cited therein.

Gonzalez v. Puerto Rico Dept. of Educ., 254 F.3d 350 (1st Cir. 2001) provides the most complete guidance by the First Circuit to date regarding the standard for requiring a school district to provide a residential placement. The Court articulated the standard as whether the educational benefits to which a student is entitled can only be provided through around-the-clock special education and related services, thus necessitating placement in an educational residential facility.

The Court also explained that a school district does not have responsibility to address difficulties that may substantial impact a student in the home or community (such as serious behavioral or safety issues) if it can be demonstrated that these are “problems truly distinct from learning problems. Educational benefit is indeed the touchstone in determining the extent of governmental obligations under the IDEA.” Importantly however, in the quoted passage below, the Court noted the practical difficulty in making this distinction.

The Court addressed the residential services standard, as well as need for a school district to address difficulties within the home, as follows: “[The IDEA] does not require a local school committee to support a handicapped child in a residential program simply to remedy a poor home setting or to make up for some other deficit not covered by the Act. It is not the responsibility of local officials under the Act to finance foster care as such: other resources must be looked to. Nonetheless, as a practical matter, in cases such as this one, where all agree that the student’s activities need to be highly structured both during and after school in order for him to receive an appropriate education, clear lines can rarely be drawn between the student’s educational needs and his social problems at home. Thus, typically an IEP in cases where the student’s disability is this serious (and requires such a degree of structure) must address such problems in some fashion, even if they do not warrant residential placement.”

Rome Sch. Comm. v. Mrs. B., 247 F.3d 29 (1st Cir. 2001) stated that, in determining whether an IEP must address the behaviors of a student with emotional deficits, “[t]he question is whether [his] behavioral disturbances interfered with the child’s ability to learn”. The Court also noted: “Mainstreaming may not be ignored, even to fulfill substantive educational criteria.”

Weber v. Cranston Sch. Comm., 212 F.3d 41 (1st Cir. 2000) noted that student’s retaliation claim fell within the jurisdiction of the BSEA in the following situation: “[student’s] claim of retaliation is literally ‘related’ to the identification, evaluation, or educational placement of [her] ‘child’ and therefore must be considered by the hearing officer.”

Rose et al. v. Yeaw, 214 F.3d 206 (1st Cir. 2000) noted the broad jurisdiction of a BSEA hearing officer: “[the] scope of the due process hearing is broad, encompassing complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.”

Verhoven v. Brunswick Sch. Com., 207 F.3d 1 (1st Cir. 1999) provides a useful discussion of the First Circuit’s understanding of stay-put issues.

Murphy v. Timberlane Reg’l Sch. Dist., 22 F.3d 1186 (1st Cir. 1994) addressed statute of limitations issues, holding that a school district could not use laches as an affirmative defense.

Pihl v. Massachusetts Dept. of Educ., 9 F.3d 184 (1st Cir.1993) is an important compensatory education decision. The Court held that parents appropriately stated a claim for relief under the IDEA in the form of compensatory education as remedy for past deprivation during time student was eligible, regardless of student’s eligibility for current or future services under the IDEA.

Amann v. Town of Stow, 991 F.2d 929 (1st Cir. 1993) addressed the question of how quickly an aggrieved party must seek judicial review of BSEA decision. In doing so, the Court noted the importance, as a general rule, of prompt resolution of special education disputes: “Speedy resolutions to the IEP and placement disputes that characterize § 1415(e)(2) actions are necessary for such resolutions to serve any substantively useful purposes because children develop quickly and their needs often change substantially from year to year. The legislative history, statutory terms, and regulatory framework of the IDEA all emphasize promptness as an indispensable element of the statutory scheme.” These concerns may support an argument that the BSEA has an obligation to schedule hearing dates and to otherwise manage its cases so that the final resolution of a special education dispute is not unduly delayed in a way that would prejudice the student’s education.

Lenn v. Portland Sch. Comm., 998 F.2d 1083 (1st Cir. 1993) stated that within the context of the FAPE standard, “[a]ppropriateness and adequacy are terms of moderation” but further explained that an IEP must be “reasonably calculated to provide effective results and demonstrable improvement in the various educational and personal skills identified as special needs.” (BSEA hearing officers and federal district court judges in Massachusetts continue, on occasion, to use this language.) The Court also noted that an “IEP … must target all of a child’s special needs, whether they be academic, physical, emotional, or social”. A review of the IEP for adequacy need not “consider each unique need in isolation and make a separate finding regarding … each and every identified area”. Rather, the services and placement in the IEP should be considered “as a unitary whole, taking those special needs into proper account.”

GD v. Westmoreland School District, 930 F.2d 942 (1st Cir. 1991) explained, using language that the First Circuit continues to quote, that “FAPE 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”.

Roland v. Concord School Committee, 910 F.2d 983 (1st Cir. 1990) stated that “Congress indubitably desired effective results and demonstrable improvement for the Act’s beneficiaries”. (See discussion of this language within the Lenn v. Portland decision, above.) The Court also explained that when a decision-maker seeks to determine whether an IEP was appropriate, “[t]he issue is not whether the IEP was prescient enough to achieve perfect academic results, but whether it was reasonably calculated to provide an appropriate education as defined in federal and state law. This concept has decretory significance in two respects. For one thing, actions of school systems cannot, as appellants would have it, be judged exclusively in hindsight. An IEP is a snapshot, not a retrospective. In striving for appropriateness, an IEP must take into account what was, and was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was promulgated.” This standard does not necessarily preclude consideration of a student’s progress subsequent to the issuance of the IEP if it can be shown that the progress sheds light on the reasonableness (or unreasonableness) of the IEP Team’s decision, given what information was available (or reasonably should have been available) to the IEP Team when it issued the IEP.

David D. v. Dartmouth School Committee, 775 F. 2d 411 (1st Cir. 1985) established the maximum feasible benefit standard as a state education standard (found in state special education law) that exceeded the federal floor and therefore must be incorporated into the IDEA’s standards. However, the maximum feasible benefit standard has since been changed by state law.

Burlington v. DOE, 736 F.2d 773 (1st Cir. 1984), which was affirmed by the Supreme Court (see my September 2014 posting), held that the “[IDEA] incorporates by reference state standards, be they substantive or procedural, that exceed the federal basic floor of meaningful, beneficial educational opportunity”. The “objective of the federal floor, then, is the achievement of effective results–demonstrable improvement in the educational and personal skills identified as special needs–as a consequence of implementing the proposed IEP”. (See discussion of this language in the Lenn v. Portland and Roland v. Concord decisions, above.)

In this decision, the First Circuit explained when a court may consider “additional evidence” beyond the BSEA’s administrative record. The Court also noted the deference given to a BSEA decision’s reliance on state law: “Where a state administrative decision rules a proposed IEP invalid because it has not met the state’s substantive or procedural requirements pertaining to a free appropriate public education for a particular disabled child, a federal court should accord the findings deference” thus emphasizing the importance of BSEA decisions that interpret and rely upon state educational standards. The Court also emphasized the importance of timely resolution of IDEA disputes: “Some skills must be learned early in the brain’s maturation process for them to be learned well, or in some cases, at all. Delay in remedial teaching is therefore likely to be highly injurious to such children.”

Hurry v. Jones, 734 F.2d 879 (1st Cir. 1984) found that the student’s father was entitled not only to reimbursement for his out-of-pocket expenses, but to reimbursement for his own time and effort as well.

Doe v. Brookline Sch. Comm., 722 F.2d 910 (1st Cir. 1983) addressed stay-put issues for the first time in a First Circuit decision.

Abrahamson v. Hershman, 701 F.2d 223 (1st Cir. 1983) is the Court’s first discussion of the standard applicable to residential placements. It is noteworthy that the Court concluded that a group or foster home may be part of the residential services paid for by a school district.