UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
REGIONAL SCHOOL DISTRICT NO. 9 : BOARD OF EDUCATION, : Plaintiff, : Civil Action No. : 3:06 CV 01278 (CFD)
v. :
MR. AND MRS. P, AS PARENTS AND : NEXT FRIENDS OF M.P., A Minor Child, : AND THE STATE OF CONNECTICUT : DEPARTMENT OF EDUCATION, : Defendant. :
RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
Plaintiff, the Regional School District No. 9 Board of Education (“School District”),
seeks review under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq.
(“IDEA”), of a Connecticut administrative decision ordering the School District to reimburse the
defendants, Mr. and Mrs. P, acting as next friends of their son M.P., for certain private school
tuition costs. The parties’ cross-motions for summary judgment are pending.1
I. Background2
M.P., born on June 14, 1990, suffers from a form of autism known as Pervasive
1 Defendant the State of Connecticut Department of Education also filed a motion for summary judgment, which the School District did not oppose [Dkt. # 45]. The Court granted the motion and terminated the State of Connecticut as a party. 2 The facts are taken from the parties’ summary judgment papers and Local Rule 56(a) statements, as well as the Hearing Officer’s Final Decision and Order. They are undisputed unless otherwise noted.
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Developmental Disorder-Not Otherwise Specified (“PDD-NOS”). Based on this diagnosis, M.P.
qualifies for special education services under the IDEA. See 20 U.S.C. § 1401(3)(a)(i). At all
relevant times, M.P. was a resident of Redding, Connecticut. The Redding Board of Education
is responsible for the education of Redding residents prior to high school. When Redding
residents reach high school, the responsibility for their education shifts to the plaintiff, the
Regional School District No. 9 Board of Education.
M.P. received special education services under IDEA in the Redding Public School
system through the end of seventh grade. In September 2003, however, Mr. and Mrs. P
unilaterally placed M.P. in the residential program at Devereux Glenholme (“Devereux”), a
private special education school in Washington, Connecticut. The defendants claim that they
moved M.P. to Devereux because of his increased and unaddressed difficulties in the Redding
public school system.
When M.P. entered the ninth grade in 2004, the Regional School District No. 9 became
responsible for his education. In that capacity, and after meetings with a Planning and
Placement Team (“PPT”) preceding both the 2004-2005 and 2005-2006 school years, the School
District proposed individualized education programs (“IEPs”) for M.P. These IEPs called for
M.P. to transfer to Joel Barlow High School (“JBHS”), the District’s public high school. Mr.
and Mrs. P rejected both proposals, contending that the IEPs did not meet M.P.’s needs. M.P.
remained at Devereux for both school years; the parties dispute whether he made progress while
enrolled at Devereux.
In November 2005, the defendants requested reimbursement from the School District for
the educational and residential costs of sending M.P. to Devereux for the two school years. The
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School District denied the reimbursement. At the defendants’ request, the State of Connecticut
Department of Education held a special education due process hearing to determine whether the
defendants were entitled to reimbursement for M.P.’s placement at Devereux in 2004-2005 and
2005-2006. The Hearing Officer held that while the “District’s proposed program for [M.P.] . . .
was largely appropriate[,] . . . several components of the proposed IEPs related to transitioning
[M.P.] from Devereux to JBHS were not fully thought through or developed or adequately
documented.” State Department of Education Final Decision and Order No. 05-361, at *4 (July
10, 2006). The Hearing Officer noted that the IEPs failed to include an adequate plan to
transition M.P. from Devereux to JBHS; provide sufficient training for M.P.’s teachers; include a
family training and communication component; adequately account for follow-up meetings;
include a clear plan for assessing M.P.’s assistive technology needs; or outline a sufficient plan
for addressing transportation issues. Id. at 19-21. Based on these deficiencies in areas
“necessary” and “critical” to M.P., the Hearing Officer concluded that the District failed to offer
the free and appropriate public education (“FAPE”) required by the IDEA. Id. at 4. The Hearing
Officer ordered the School District to reimburse the defendants for the cost of M.P.’s two years
at Devereux, less residential costs. The School District did not implement the order, but rather
appealed the Hearing Officer’s decision to this Court. See 20 U.S.C. § 1415(i)(2)(A); Conn.
Gen. Stat. § 10-76h(d)(4).
The parties’ cross motions for summary judgment present two issues: whether the
Hearing Officer properly concluded that first, the School District’s proposed plans failed to
provide M.P. with a free appropriate public education, and second, that Devereux was an
appropriate alternative placement. The School District argues that the Hearing Officer erred in
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its determination as to FAPE by applying a “maximization standard” to the proposed IEPs, and
further erred in concluding that Devereux was an appropriate educational program because
M.P.’s progress there is disputed.
II. Standard of Review
Ordinarily, summary judgment is warranted if the moving party establishes that “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact” and that it is
entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(quoting Fed. R. Civ. P. 56(c)); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A
motion for summary judgment serves a distinct role in IDEA actions, however, “trigger[ing]
more than an inquiry into possible disputed issues of fact.” Lillbask ex rel. Mauclaire v. Conn.
Dep’t of Educ., 397 F.3d 77, 83 n.3 (2d Cir. 2005). The Court’s role at the summary judgment
state of an IDEA action is “in substance an appeal from an administrative determination.” Id.
(quoting Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 892 (9th Cir. 1995)). While
“[t]he responsibility for determining whether a challenged IEP will provide a child with an
appropriate public education rests in the first instance with administrative hearing and review
officers[,] . . . [t]heir rulings are . . . subject to ‘independent’ judicial review,” Walczak v. Fla.
Union Free Sch. Dist., 142 F.3d 119, 129 (1998). In other words, “[t]he inquiry . . . is not
directed to discerning whether there are disputed issues of fact, but rather, whether the
administrative record, together with any additional evidence, establishes that . . . the child’s
educational needs have been appropriately addressed.” A.S. ex rel. Mr. and Mrs. S. v. Norwalk
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Bd. of Educ., 183 F. Supp. 2d 534, 539 (D. Conn. 2002) (quoting Wall v. Mattituck-Cutchogue
Sch. Dist., 945 F. Supp. 501, 508 (E.D.N.Y. 1996)).
The reviewing court’s role is strictly limited, however. Grim v. Rhinebeck Cent. Sch.
Dist., 346 F.3d 377, 380-81 (2d Cir. 2003). Independent review “is by no means an invitation to
the courts to substitute their own notions of sound educational policy for those of the school
authorities which they review.” Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v.
Rowley, 458 U.S. 176, 206 (1982). Although federal courts may “not simply rubber stamp
administrative decisions, they are expected to give ‘due weight’ to these proceedings” because of
the judiciary’s general lack of “‘specialized knowledge and experience’ necessary to resolve
‘persistent and difficult questions of educational policy.’” Walczak, 142 F.3d at 129 (quoting
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 42, (1973)). “Deference is particularly
appropriate when . . . the state hearing officers’ review has been thorough and careful.” Id.
III. Analysis
The IDEA is “an ambitious federal effort to promote the education of handicapped
children” by awarding federal assistance to states that provide a free and appropriate public
education to disabled children. Rowley, 458 U.S. at 179, 181. To achieve FAPE, a state must
provide each disabled child with an “individualized education program.” Id. at 181. The IEP
should be “the result of collaborations between parents, educators, and representatives of the
School District.” Lillbask, 397 F.3d at 81 (internal citations omitted). While the IEP need not
maximize the child’s educational potential, it must provide “meaningful” opportunities and the
possibility for more than “trivial advancement.” Walczak, 142 F.3d at 130 (2d Cir. 1998)
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(internal citations omitted). Where, as here, the parents of a disabled child unilaterally placed
the child in a private school, the Court must ask two questions to determine whether they are
entitled to reimbursement: “[F]irst, whether the challenged IEP was adequate to provide the child
with a free appropriate public education; and second, whether the private educational services
obtained by the parents were appropriate to the child's needs.” M.C. ex rel. Mrs. C. v.
Voluntown Bd. of Educ., 226 F.3d 60, 66 (2d Cir. 2000) (citing Walczak, 142 F.3d at 129; Still
v. DeBuono, 101 F.3d 888, 891 (2d Cir.1996)).
A. The Adequacy of the IEPs
The Court finds no basis in the record for overturning the Hearing Officer’s decision that
the proposed IEPs failed to comply with the IDEA. The Supreme Court has established a two-
part inquiry for courts reviewing administrative determinations as to IEPs, as follows: “First, has
the State complied with the procedures set forth in the Act? And second, is the individualized
educational program developed through the Act’s procedures reasonably calculated to enable the
child to receive educational benefits?” Rowley, 458 U.S. at 206-07. Because the plaintiff does
not claim procedural violations, this Court’s inquiry is limited to the second question. See, e.g.,
B.L. v. New Britain Bd. of Educ., 394 F. Supp. 2d 522, 533 (D. Conn. 2005). “For an IEP to be
reasonably calculated to enable the child to receive educational benefits . . . it must be likely to
produce progress, not regression.” M.S. ex rel. S.S. v. Bd. of Educ. of the City Sch. Dist. of the
City of Yonkers, 231 F.3d 96, 103 (2d Cir. 2000) (citations and quotation marks omitted). A
reviewing court must, therefore, “examine the record for any ‘objective evidence’ indicating
whether the child [was] likely to make progress or regress under the proposed plan.” Walczak,
142 F.3d at 130 (2d Cir. 1998) (citation omitted). The objective evidence supports the Hearing
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Officer’s conclusion that the six deficiencies he identified in the proposed IEPs would likely
have caused M.P. to regress.
More specifically, the Hearing Officer pointed to six areas of the District’s proposed
programs that “fell short,” and which indicate that M.P. was likely to regress under the District’s
proposals. See Final Decision and Order 05-361, *19-21. First, the District’s planning for
transitioning M.P. from Devereux to JBHS was inadequate and/or inadequately documented. Id.
at *19. The Hearing Officer reasoned that even if the District’s transitioning plan may have
satisfied the IDEA, that the plans were not “fully developed and documented so that the Parents
at the PPT [] could determine their adequacy” was a “basis for finding that the District failed to
adequately plan for [M.P.’s] transition.” Id. at *19-20. Second, the Hearing Officer held that the
District’s proposals failed to adequately provide training for M.P.’s teachers. Id. at *20.
Because “proactive training and collaboration would be critical to assure that all of [M.P.’s]
teachers were consistent in their understanding of [M.P.’s] needs and their approach to him,” the
IEPs’ call for a “voluntary generic training session . . . [was] inadequate.” Id. Third, the District
failed to provide a family training/family communication component that would have been
“necessary to provide at a minimum for a communication protocol between home and school to
support [M.P.’s] functioning in school.” Id. Fourth, the District failed to include a component
of formal, frequent follow-up team meetings to assess the M.P.’s transition to JBHS. Id. at 21.
The District’s plan did not include a formal review of M.P.’s adjustment for eight weeks. Id.
“[G]iven [M.P.’s] circumstances,” the Hearing Officer concluded, “more structure is required
particularly during the early phases of [M.P.’s] enrollment at JBHS.” Id. Fifth, the Hearing
Officer concluded that the District failed to define a clear plan for assessing M.P.’s assistive
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technology needs. Id. Finally, the Hearing Officer concluded that the District failed to define an
appropriate plan for addressing M.P.’s transportation issues.
The Hearing Officer’s conclusion that the IEPs did not ensure FAPE is supported by
objective evidence that, given these six deficiencies, M.P. was likely to regress rather than
progress. For example, the record of the administrative hearing demonstrated that the School
District’s IEPs did not adequately provide for or adequately document a transition plan for M.P.
The School District’s proposals did not include a transition plan, and M.P.’s Devereux social
worker testified at the administrative hearing that the District did not address this issue at the
meetings in which the parties discussed M.P.’s possible transfer to JBHS. Additionally, the
objective evidence demonstrated that the proposed IEPs provided only for voluntary and non-
specific JBHS teacher training. Although the School District’s plans may have been adequate in
most areas, the record supports that their failure in several key areas was likely to produce
regression rather than progression. Further, while the School District argues that the Hearing
Officer applied a “maximization standard” and that the six deficiencies the Hearing Officer listed
were unnecessary “extras,” it is clear from the Final Order that the Hearing Officer regarded at
least some of the deficiencies as “necessary,” “critical,” and “required” to provide M.P. with a
FAPE.
B. Devereux as an Appropriate Alternative
The Court additionally finds no basis for overturning the Hearing Officer’s decision that
Devereux was an “appropriate” alternative to JBHS. Although Devereux has not been
completely successful for M.P., an alternative private program need not be perfect and need not
meet the IDEA’s FAPE requirement. Frank G. v. Bd. of Educ. of Hyde Park, Cent. Sch. Dist.,
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459 F.3d 356, 364-65 (2d Cir. 2006). Rather, a parent must show only that the placement
“provides educational instruction specially designed to meet the [child’s] unique needs” and that
it is “supported by such services as are necessary to permit the child to benefit from instruction.”
Id. at 365 (quoting Rowley, 458 U.S. at 188-89). The Second Circuit articulated that private
placement is appropriate if it is more likely to produce progress rather than regression. See id. at
364. As the record demonstrates, and as the Hearing Officer explained, Devereux’s specialized
curriculum was designed precisely “to address the educational, emotional, social, social skills
and behavioral needs of students” like M.P. The evidence in no way suggests that Devereux’s
program was not calculated to confer an adequate benefit.3
C. Subsidiary Arguments
The Court is also not persuaded by the School District’s subsidiary arguments. Contrary
to the School District’s assertion, the defendants adequately raised both M.P.’s 2004-2005 and
2005-2006 IEPs in their request for a hearing. In questioning whether the School District was
responsible for the cost of M.P.’s tuition at Devereux for the 2005-2006 school year, it implicitly
raised the issue of whether the proposed 2005-2006 IEP was appropriate. Additionally, because
the Hearing Officer’s decision was not based solely on the IEPs’ incomplete transition plan, the
Court need not address the School District’s argument that it was not responsible for M.P.’s
educational programming during the summer of 2004.
3 The plaintiff’s argument that M.P. made little or no progress is not persuasive. When determining whether private placement was appropriate, the question is primarily whether the placement was calculated to confer an educational benefit, not whether the student actually made progress. Although courts may consider a child’s record of success (or lack thereof), it is not dispositive. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 115 (2d Cir. 2007). Furthermore, the Hearing Officer was reasonable in concluding based on the record that M.P. made progress, albeit little, while at Devereux.
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Next, the School District also argues that the defendants are not entitled to
reimbursement because they accepted Devereux’s IEPs before the School District had an
opportunity to make FAPE available to M.P. The Second Circuit previously rejected a nearly
identical argument, concluding it was contrary to the IDEA’s purpose and violative of traditional
rules of statutory construction. Hyde Park, 459 F.3d at 372. As the Second Circuit noted, it
would “place the parents of children with disabilities in the untenable position of acquiescing to
an inappropriate placement in order to preserve their right to seek reimbursement from the public
agency that devised the inappropriate placement.” Id.
Finally, the School District also suggests that it was unable to provide a complete IEP
because Mr. and Mrs. P failed to cooperate fully during M.P.’s PPTs. The IDEA does instruct
that reimbursement for private schooling “may be reduced or denied . . . upon a judicial finding
of unreasonableness with respect to actions taken by the parents.” 20 U.S.C. §
1412(10)(C)(iii)(III). Courts have, thus, held that parents have a duty to notify a School District
of their dissatisfaction with a proposed IEP. Voluntown, 226 F.3d at 68 (“[A] distinction should
be made ‘between a unilateral parental transfer made after consultation with the school system,
yet still an action without the system’s agreement, and transfers made truly unilaterally, bereft of
any attempt to achieve negotiated compromise and agreement.’”) (citing Town of Burlington v.
Dep’t of Educ., 736 F.2d 773, 779 (1st Cir. 1984), aff’d, 471 U.S. 359 (1985)). This is not a case
of parental transfer made without any attempt to compromise; rather, Mr. and Mrs. P participated
in all of M.P.’s PPTs and timely informed the School District that they were dissatisfied with the
proposed IEPs.
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IV. Conclusion
For the reasons set forth above, the defendants’ motion for summary judgment [Dkt. #
55] is GRANTED. The plaintiff’s motion for summary judgment [Dkt. # 59] is DENIED.
SO ORDERED this 12th day of January 2009 at Hartford, Connecticut. The Clerk is
directed to close this case.
/s/ Christopher F. Droney CHRISTOPHER F. DRONEY UNITED STATES DISTRICT JUDGE
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