Opinion · Court of Appeals for the Second Circuit
Robert Walczak and Karen Walczak v. Florida Union Free School District and Maureen Flaherty
142 F.3d 119
- Type
- Opinion
- Court
- Court of Appeals for the Second Circuit
- Jurisdiction
- Federal
- Date
- 1998-04-16
- Topic
- general
holding that because the challenged IEP was adequate, the defendant school board could not “be ordered to reimburse the parents for expenses incurred as a result of their decision to remove their child from the ... program” | noting that the holding in Carter applies only “where both prongs of [the] Burlington test are [otherwise] satisfied” | holding that because the challenged IEP was adequate, defendant school board could not be or dered to reimburse parents for expenses incurred as a result of their decision to remove their child from the district’s program | stating that federal courts are required to give “due weight” to state administrative proceedings under the IDEA | noting that the administrative officer could postpone a due process hearing to allow the school district time to correct a technical defect in the challenged IEP | holding that parents are entitled to tuition reimbursement when “it appears (1) that the proposed IEP was inadequate to afford the child an appropriate public education, and (2) that the private education services obtained by the parents were appropriate to the child’s needs” | affirming a district’s determination to group a student in a classroom with students of different intellectual, social, and behavioral needs, where sufficient similarities existed | noting a district court’s “independent review” requires an examination of the administrative record in its entirety | issuing decision in IDEA appeal to this Court where district court denied summary judgment and then entered judgment against moving party | looking to "test scores and similar objective criteria” in certain circumstances | looking to “test scores and similar objective criteria” in certain circumstances | “[S]pecial education and related services must be provided in the least restrictive setting consistent with a child’s needs.” | “[T]he district court did not point to any objective evidence that led it to reject the administrative officers’ conclusions.... ” | "Deference is particularly appropriate when, as here, the state hearing officers' review has been thorough and careful." | “[T]he attainment of passing grades and regular advancement from grade to grade are generally accepted indicators of satisfactory progress.” | “Deference is particularly appropriate when ... the state hearing officer’s] review has been thorough and careful.” | ‘What the [IDEIA] guarantees is an ‘appropriate’ education, ‘not one that provides everything that might be thought desirable by loving parents.’ ” | “While federal courts do not simply rubber stamp administrative decisions, they are expected to give ‘due weight’ to these proceedings ... ” | “What the [IDEIA] guarantees is an appropriate education, not one that provides everything that might be thought desirable by loving parents.” | "[T]he attainment of passing grades and regular advancement from grade to grade are generally accepted indicators of satisfactory progress." | "[T]his court has looked to test scores and similar objective criteria even in cases where a disabled child has been educated in self-contained special education classes." | “Deference is particularly appropriate when ... the state hearing officers’ review has been thorough and careful.” | “A review of objective evidence [of a student’s progress] is easiest, of course, when a disabled child is in a mainstream class.” | “[T]he attainment of passing grades and regular advancement from grade to grade are generally accepted indicators of satisfactory progress.” | “[T]he door of public education must be opened for a disabled child in a ‘meaningful’ way.” | “[T]he attainment of passing grades and regular advancement from grade to grade are generally accepted indicators of satisfactory progress.” | “Deference is particularly appropriate when, as here, the [SRO’s] review has been thorough and careful.” | “Deference is particularly appropriate when, as here, the state hearing officersʹ review has been thorough and careful.” | “Defere
Citator
- Cited by
- 129 opinions
WALCZAK v. FLORIDA UNION FREE SCHOOL DISTRICT,142 F.3d 119(2nd Cir. 1998)
ROBERT WALCZAK AND KAREN WALCZAK, PLAINTIFFS-APPELLEES, v. FLORIDA
UNION FREE SCHOOL DISTRICT AND MAUREEN FLAHERTY, DEFENDANTS-APPELLANTS.
No. 97-7155
United States Court of Appeals, Second Circuit.
Argued November 3, 1997
Decided April 16, 1998
Reversed and Remanded.Page 120
FREDERICK B. SIMPSON, (AHMUTY, DEMERS McMANUS, 200 I.U. Willets Road, Albertson, New York, Frederick B. Simpson, Janice Berkowitz, and Brendan T. Fitzpatrick on the briefs), for Defendants-Appellants.
Before: OAKES, PARKER, Circuit Judges, RAGGI, District Judge.1
[2] The School District now appeals from an order of Judge Charles L. Brieant denying its motion for summary judgment and entering judgment in favor of the Walczaks. It contends that the district court's finding that the BOCES program was inadequate to permit B.W. to make meaningful educational progress is not supported by the extensive record of administrative proceedings in this case. This court agrees. Because a preponderance of the evidence establishes the adequacy of the proposed placement, we reverse the judgment of the district court and remand the case.
[3] Background
[4] To resolve the issue presented on this appeal, the court must first review (1) thePage 122basic requirements of IDEA, (2) the means by which New York State endeavors to comply with these requirements, (3) the individualized education program ("IEP") for B.W. that is challenged in this case, and (4) the record of proceedings before the district court.
[5] 1. IDEA
[6] IDEA is the most recent Congressional enactment in "an ambitious federal effort to promote the education of handicapped children." Board of Educ. v. Rowley,458 U.S. 176, 179 (1982) (interpreting the Education for All Handicapped Children Act, subsequently amended and renamed IDEA). Toward that end, Congress provides federal funds to those states that develop plans to assure "all children with disabilities the right to a free appropriate public education."20 U.S.C. § 1412(1); see Board of Educ. v. Rowley, 458 U.S. at 181. The "free appropriate public education" mandated by federal law must include "special education and related services" tailored to meet the unique needs of a particular child,20 U.S.C. § 1401(a)(18), and be "reasonably calculated to enable the child to receive educational benefits," Board of Educ. v. Rowley, 458 U.S. at 207.[7] Because the law expresses a strong preference for children with disabilities to be educated, "to the maximum extent appropriate," together with their non-disabled peers,20 U.S.C. § 1412(5), special education and related services must be provided in the least restrictive setting consistent with a child's needs. Only "when the nature or severity" of a child's disability is such "that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily" should a child be segregated. Id. In such cases, instruction may be provided not only in special classrooms but also "in the home, in hospitals and institutions, and in other settings."20 U.S.C. § 1401(a)(16). Indeed, a school board may be required to place a child in a residential institution if such a placement is necessary to provide an appropriate education. See 34 C.F.R. § 300.302 (1998); Mrs. B. v. Milford Bd. Of Educ.,103 F.3d 1114, 1122 (2d Cir. 1997).
[8] The particular educational needs of a disabled child and the services required to meet those needs must be set forth at least annually in a written IEP. See20 U.S.C. § 1414(a)(5). An IEP must state (1) the child's present level of educational performance; (2) the annual goals for the child, including short-term instructional objectives; (3) the specific educational services to be provided to the child, and the extent to which the child will be able to participate in regular educational programs; (4) the transition services needed for a child as he or she begins to leave a school setting; (5) the projected initiation date and duration for proposed services; and (6) objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved. See20 U.S.C. § 1401(a)(20). A school official qualified in special education, the child's teacher, the child's parents, and, where appropriate, the child, all participate in the development of an IEP. See id.
[9] Parents who are dissatisfied with a proposed IEP may file a complaint with the state educational agency. See20 U.S.C. § 1415(B)(1)(E). Complaints are resolved through an "impartial due process hearing,"20 U.S.C. § 1415(b)(2), at which school authorities have the burden of supporting the proposed IEP, see Matter of the Application of a Handicapped Child, 22 Educ. Dep't Rep. 487, 489 (1983) ("It is well established that a board of education has the burden of establishing the appropriateness of the placement recommended by [the school board]"); see also Application of a Child Suspected of Having a Disability, N Y State Educ. Dep't Appeal No. 93-9 (Mar. 29, 1993); Application of a Child with a Handicapping Condition, N.Y. State Educ. Dep't Appeal No. 92-7 (Mar. 5, 1992). A local hearing officer's decision may be appealed to the state educational agency, see20 U.S.C. § 1415(c), after which any party still aggrieved may sue in either state or federal court, see20 U.S.C. § 1415(e)(2). A court will fashion appropriate relief based on its assessment of a preponderance of the evidence developed at thePage 123administrative proceedings and any further evidence presented by the parties. Id.
[10] 2. New York's Regulatory Scheme
[11] Since New York State receives federal funds under IDEA, it is obliged to comply with the requirements of this law. To meet these obligations and to implement its own policies regarding the education of disabled children, the State has assigned responsibility for developing appropriate IEPs to local Committees on Special Education ("CSE"), the members of which are appointed by school boards or the trustees of school districts. See N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 1997-98); Heldman v. Sobol,962 F.2d 148, 152 (2d Cir. 1992). In developing a particular child's IEP, a CSE is required to consider four factors: (1) academic achievement and learning characteristics, (2) social development, (3) physical development, and (4) managerial or behavioral needs. See 8 N.Y.C.R.R. § 200.1(kk)(2)(i) (1997).[12] New York further requires that each child's IEP identify a specific class placement. See 8 N.Y.C.R.R. § 200.4(c)(2)(ix). Children may be grouped together in a special education class if they have "the same disabilities" or if they have "differing disabilities [but] . . . similar individual needs for the purpose of being provided a special education program." 8 N.Y.C.R.R. § 200.1(jj); see also 8 N.Y.C.R.R. § 200.6(g)(3). Thus, the students' in a class must have sufficiently similar academic levels and learning characteristics that each child will have the opportunity to achieve his or her annual goals. See 8 N.Y.C.R.R. § 200.6(a)(3)(i). A CSE must also strive to "assure that the social interaction within the group is beneficial to each student, contributes to each student's social growth and maturity, and does not consistently interfere with the instruction being provided." 8 N.Y.C.R.R. § 200.6(a)(3)(ii). Nevertheless, the regulation cautions that the "social needs of a student shall not be the sole determinant" of his or her class placement. See id. Similarly, the management needs of the students in a class group may vary, provided that no student unduly interferes with the ability of others to learn. See 8 N.Y.C.R.R. § 200.6(a)(3)(iv). Children whose disabilities do present particular management concerns are grouped in smaller-than-average size classes of six, eight, or twelve students, depending on the degree of intervention required. See 8 N.Y.C.R.R. § 200.6(g)(4).
[13] 3. The Challenged 1995-96 IEP
[14] The challenged 1995-96 IEP provided for B.W. to be educated in a year-round BOCES day program for the developmentally disabled. There would be twelve children in her class, taught by one teacher with the assistance of one teacher's aide. In addition, B.W. would receive four 30-minute sessions of speech therapy each week, three times in a group of up to five children and once by herself. She would also participate in a 30-minute group counseling session once per week. (Ex. 174-75; see generally Ex. 161-90.)[15] The Walczaks disagreed with this proposal, contending that their daughter's needs could not be met in a day program and that she required a residential placement. Alternatively, they challenged the size and composition of the proposed BOCES class.
[16] The Walczaks' objections triggered an independent administrative review of the proposed IEP. Administrative officers at both the local and state level upheld the BOCES placement. In ruling otherwise, the district court conclusorily adopted the Walczak[s'] arguments that the administrative proceedings did not delve sufficiently into B.W.'s classroom performance and that the School District had not shown that the BOCES placement was adequate to permit B.W. to make educational and social progress. See Walczak v. Florida Union Free Sch. Dist., No. 96 Civ. 1634 (CLB) (S.D.N.Y. Dec. 23, 1996). (JA 334-36). In fact, the record developed at the administrative proceedings was exhaustive, and both the local and state reviewing officers carefully analyzed all relevant materials in ruling in favor of the School District. This court is obliged to detail [review] that record to explain why the district court's ruling must be reversed.
[17] 4. The Record Before the District Court
[18] a. The Independent Evidentiary Hearing
[19] Over the course of six days in May and June 1995, the local independent hearing officerPage 124took testimony from eight witnesses: (1) Elaine Flynn, the Interim Chairman of the School District's CSE[;] (2) Frank Jordan, a School District psychologist[;] (3) Louise Baines, the Supervisor of the BOCES program for the developmentally disabled[;] (4) Charles Entress, the Interim Director of the School District's Department of Special Education[;] (5) Margaret Napolitano, B.W.'s most recent classroom teacher at BOCES[;] (6) Jennifer Makower, B.W.'s speech therapist at BOCES[;] (7) Dr. Phoebe Liss, a psychologist who had evaluated B.W. on a number of occasions at the request of her parents[;] and (8) Barbara Priestner-Werte, a psychotherapist who had privately counseled B.W. once a week during the period 1992-95. It also reviewed voluminous documentary evidence, including virtually every school report and professional evaluation of B.W. since she had entered kindergarten.[20] (1) The Original Classification of B.W. as Learning Disabled
[21] B.W. was [five years old and] born on March 16, 1983. In 1988-89, she was enrolled in a regular kindergarten class in the School District's Golden Hill Elementary School [when various learning difficulties became apparent.] Before the year concluded, B.W.'s parents and teacher expressed concern about various problems affecting her school performance. (Ex. 303-322.) Specifically, B.W. had difficulty communicating with others and often engaged in inappropriate "perseverative" behavior, i.e., she would incessantly repeat irrelevant or inappropriate questions or remarks. She also compulsively touched other children and herself. (Id.) In the first half of 1989, B.W. was examined various [Examining] neurologists and psychiatrists who identified a host of possible disabilities, including Minimal Brain Dysfunction Syndrome with an attention deficit disorder and hyperactivity, developmental language disorder, and a mild to moderate separation anxiety disorder[,]. The child's repetitive questions and rituals were linked to an obsessive compulsive disorder, [and Tourette's Syndrome[.], or a possible combination of the two. (Ex. 278-79, 296-98.) Tests administered by [E]ducational psychologist [Phoebe Liss evaluated B.W. and determined that she had a low/normal] revealed that B.W. had an IQ of 81, placing her in the low/normal range of intelligence[,]. (Ex. 299-300.) Dr. Liss also noted that B.W. had a limited attention span, [an inability to speak in complete sentences, and an inability to follow simple instructions.] that her vocabulary was poor, that she was unable to speak in complete sentences, and that she had difficulty following very simple instructions. (Ex. 300-01.) Similarly, the child's motor skills, information processing, sequencing ability, and short-term memory were all deficient.[22] The doctors uniformly recommended that B.W. be classified as learning disabled and that a specialized education program be developed for her with emphasis on language and occupational therapy. (Ex. 298, 302.) At about this time, Ritalin was prescribed for B.W., and she has continued to take that medication in various doses over the years.2The School District's CSE considered the various evaluations and agreed [and proposed that in that B.W. should be classified as learning disabled. For the 1989-90 school year, it recommended placement B.W. be placed in a BOCES special education class with supplemental special services. (Ex. 280-81.)
[23] (2) B.W.'s Placement at Bishop Dunn
[24] Instead of enrolling B.W. at BOCES, the Walczaks opted to place their daughter, at their own expense, in the Bishop Dunn Memorial School, a private school for children with learning disabilities. There, B.W. was in a self-contained special education class for most of her studies, but mainstreamed for social studies, science, and music. (Ex. 294.)[25] In May 1992, the School District reviewed B.W.'s progress. The results were very disappointing. The nine-year old child's reading skills were at the first grade level. Math skills were even poorer. (Ex. 207.) Most disturbingly, her IQ measured 55, significantly lower than in 1989. (Ex. 6.) The evaluator did question the reliability of these test results, noting the likely adverse effect of B.W.'s attention deficit and perseverative behavior on her performance. (Ex. 209-15.) This concern would be repeated in future years by other professionals who attempted to quantify B.W.'s educational potential and achievement. Dissatisfied with the CSE [this] evaluation, but also concerned about their child's lack of progress at Bishop Dunn, [T]he Walczaks [asked] arranged for Dr. Liss to reevaluate B.W. After four meetings in September 1992, [She] Dr. Liss confirmed that B.W.'s [poor progress in] reading and math skills were only at the first grade level, but she found the child's IQ to be 70 rather than 55. (Ex. 6-10.) Dr. Liss recommended that B.W. be placed in a self-contained special education [class], setting with predictable structure and multisensory approaches to learning, and that she be provided with occupational and speech therapy and counseling. (Id.)
[26] Several months later, B.W. was [examined] evaluated by yet another neurologist and child psychiatrist. (Ex. 28-34, 54-58.) [They were the first to suggest that she had a] Both diagnosed pervasive developmental disorder, which [one of them] was described as a "global neurological disturbance," consistent with B.W.'s various cognitive, intellectual, and language deficits, as well as the panoply of behavioral and social problems she presented, including "perseverations, obsessions, volatility, magical thinking, variable relatedness, insistence on sameness, insensitivity to other people's feelings, and ignorance of basic social rules and conventions, and a lack of empathy with other people." (Ex. 57.) Continued special education was recommended together with medication.
[27] (3) B.W.'s Placement in BOCES
[28] In the summer of 1993, the Walczaks finally accepted the School District's recommendation that their daughter be educated at BOCES. [For the 1993-94 term, B.W.'s IEP provided for her to be educated in a twelve student intermediate level class at BOCES.] B.W.'s 1993-94 IEP recommended that she be placed in a year-round day program at BOCES. (Ex. 104-06.) Her intermediate level class would have twelve children supervised by one teacher and one teacher's aide. In addition,she would receive group counseling, individualPage 125occupational therapy, and group and individual speech therapy. The IEP identified annual goals and short-term instructional objectives to help improve the child's reading, mathematics, writing, interpersonal, motor, and language skills, and develop her self awareness. The Walczaks accepted this IEP and enrolled B.W. in the [at] BOCES program starting with the summer 1993 session.[29] BOCES' teachers monitored B.W.'s progress in detailed quarterly reports. Through detailed quarterly reports, B.W.'s [BOCES'] teachers [monitored B.W.'s] and counselors monitored her progress [in detailed quarterly reports. These indicate that throughout her first year at BOCES, B.W. required constant teacher supervision simply to focus her attention on her assignments. She was frequently disruptive, displaying] toward achieving her IEP goals. In the first such report, prepared in August 1993, B.W.'s classroom teacher, Ms. Bloom, noted a number of difficulties. (Ex. 67.) Testing showed B.W.'s reading comprehension to be "erratic" with an average below 80 percent. Her vocabulary scores were even poorer. In mathematics and social studies, B.W. needed constant teacher supervision to complete her work. As to B.W.'s social skills, Ms. Bloom described the child as "a complex young girl" who had difficulty using language appropriately and who engaged in various obsessive/compulsive behaviors [that], all of which adversely affected her ability to interact with others. Nevertheless, Ms. Bloom thought B.W. could "rise to the occasion" if expectations were clearly laid out and encouragement provided.
[30] In the summer of 1993, the Walczaks voluntarily withdrew B.W. from BOCES for four weeks so that she could attend a residential camp for disabled children. At mid-year, Ms. Bloom reported that B.W. was making slow progress in her academic subjects. Behavior problems still affected her performance, and active teacher encouragement continued to be necessary to help B.W. remain focused on her assignments. (Ex. 72-75.) Soon thereafter, in February 1994, the CSE convened to develop B.W.'s IEP for the following school year. It recommended that the child continue in the BOCES year-round program with the same related services. (Ex. 87-92.) The Walczaks accepted this recommendation.
[31] In June 1994, when B.W. had completed her first year at BOCES, [Nevertheless, at the end of the first year, her classroom teacher, Ms. Bloom could report concrete progress in several areas.] Ms. Bloom reported various areas of concrete progress. (Ex. 69-70.) The child's [B.W. was now] reading skills now tested at the late second grade level. She could identify the number of syllables in a word, perform basic grammar exercises, and write two to three related sentences on an assigned topic. In mathematics, B.W. could perform simple addition and subtraction and had successfully completed a unit on telling time. Ms. Bloom cautioned, however, that B.W.'s day-to-day performance [was] remained inconsistent, [and] that she continued to require teacher intervention to remain focused and to complete tasks[.], and that her inappropriate behavior affected her ability to socialize with other children. Jennifer Makower, B.W.'s speech therapist, candidly reported that the child had performed poorly or only fairly over the year in improving her use of speech and language. (Ex. 70.) By contrast, in occupational therapy, B.W. had made good improvement in the development of her motor skills. (Id.)
[32] B.W. participated in less than half of [In] the summer [of] 1994[, the Walcyks voluntarily withdrew B.W. from BOCES and] BOCES term because her parents voluntarily sent her to a four-week residential camp for disabled children. (Ex. 76-77.) The Walczaks are convinced that their daughter's social skills benefitted tremendously from this experience, but the record evidence on this point is essentially conclusory and second hand. Apparently, no significant social progress was evident to B.W.'s teachers when the child returned to BOCES. In her fall 1994 report, classroom teacher Margaret Napolitano noted that B.W. did not respond to efforts to encourage interaction with her classmates. (Ex. 78.) Similarly, B.W.'s school counselor reported that the child was cooperative but minimally involved in the group process. (Ex. 79.)
[33] BOCES' teachers monitored B.W.'s progress in detailed quarterly reports. [As for B.W.'s academic performance,] Ms. Napolitano stated [reported] that [she continued to read], academically, B.W. was able to work at the mid-second grade level in reading and language arts, but her progress was only fair. B.W.'s performance in science and social studies was erratic due to problems with comprehension and behavior. By contrast, her effort and participation in third-grade level math[ematics] was described as excellent. (Ex. 78.) Ms. Napolitano's mid-year report showed B.W. to be continuing to work at these levels. (Ex. 63-65.)
[34] In the summer 1994, the School District undertook an intensive review of B.W.'s progress and needs. (Ex. 21-25.) Tests to evaluate reading and language skills placed B.W. at the low to mid-second grade level. Her mathematics skills tested at the kindergarten level. Visual and auditory skills were far below age level. (Ex. 22.) Once again, the evaluator recognized the difficulty B.W.'s behavioral problems presented in achieving a reliable assessment.
[35] (4) Developing the 1995-96 IEP
[36] By the 1995-96 term, B.W. would outgrow the BOCES intermediate level program. Older BOCES students who were perceived to be capable of eventually attaining a high school diploma generally moved into a special education Junior High program. Students functioning at [her] a lower academic level generally moved into a developmentally disabled program [where greater emphasis was placed on relating academic lessons to such practical tasks as] where academic subjects were taught with the goal of helping students develop the practical skills needed to meet the challenges of daily living. Exercises might focus on letter writing, shopping, simple cooking, using money, and getting along with people. (Ex. 82.) Once students [in this program] turned fourteen, [they also received] the developmentally disabled program emphasized vocational training. No one thought that B.W. could be placed in the Junior High program.[37] The Walczaks, however, were not satisfied with the BOCES developmentally disabled program. As they explained [I]n a January 27, 1995 letter to CSE Chairperson Elaine Flynn, they [they expressed a desire] were eager "to obtain the maximum interventions in [B.W.'s] self development so that she can reach her true potential." (Ex. 198.) They [thought this] had already concluded that this could best be achieved [by placing B.W.] through B.W.'s placement in a full-time residential program, specifically, the one available at Maplebrook, a private school for the learning disabled in Amenia, New York. Maplebrook was not, however, among those schools approved for the placement of disabled children by the New York State Department of Education. Thus, such a placement would be possible only if no adequate approved program were otherwise available.
[38] In anticipation of the annual CSE review [that would] to determine B.W.'s 1995-96 placement, the Walczaks again had their daughter evaluated by Dr. Liss. In her January 1995 report (Ex. 191-95), Dr. Liss noted a "startling" improvement in B.W.'s behavior since her last examination in 1992. Whereas B.W. had previously exhibited "idiosyncratic, inappropriate, and obsessive behavior," and could not "maintain conversational exchanges even in a controlled one-on-one basis," she was now "a far more appropriate person, capable of following rules, and more aware of her surroundings." (Ex. 192.) The doctor also noted B.W.'s academic progress since her last evaluation. Oral reading accuracy was [Her reading scores were at the high second to grade level, with reading comprehension in the mid-third grade level. Spelling was only at the first grade level, but Dr. Liss attributed this to B.W.'s poor "graphomotor" skills. [Her a]rithmetic skills tested in the second grade level. (Ex. 193.)
[39] Despite this progress, Dr. Liss recommended against B.W.'s continued placement [at BOCES or] in any day program. While acknowledging that the BOCES setting had been "appropriate to [B.W.'s] needs until this time," Dr. Liss stated [She explained that B.W. needed around the clock reenforcement of appropriate behavior and constant interaction with peers if she was to make social progress. This could only be provided in a residential facility.] that the child's immediate behavioral and social needs could best be addressed in a full-time residential facility such as Maplebrook. (Ex. 194.) She identified B.W.'s attendance at the residential camp in the summer of 1994 as the single most important factor in improving the child's social skills, and concluded that Maplebrook would afford B.W. a similarPage 126
[40] About this same time, School District psychologist Frank Jordan also evaluated B.W. (Ex. 1-5.) Over the course of three meetings, he administered many of the same tests to B.W. as had Dr. Liss. Mr. Jordan obtained slightly lower scores in virtually every area. He agreed that B.W. "need[ed] a specialized program and a supportive nurturing environment in order to have the best chance at learning." (Ex. 5.) He did not, however, conclude that these needs could only be met in a residential program.
[41] The School Board CSE met on February 14, 1995 to consider B.W.'s IEP for the following year. [The Walczaks were present, as were a number of experts who had evaluated or worked with B.W. While there was general agreement that B.W. had made considerable academic and social progress during her two years at BOCES,] Ms. Flynn and Mr. Jordan were both present, as were two of B.W.'s teachers, Ms. Napolitano and Ms. Makower, and her BOCES counselor and occupational therapist. The Walczaks attended this meeting together with Dr. Liss and B.W.'s private therapist, Barbara Priestner-Werte. The minutes indicate that Ms. Napolitano, Ms. Makower, Mr. Jordan, and Dr. Liss all reported their assessments of B.W. to the CSE. (Ex. 117-20) Dr. Liss and Ms. Priestner-Werte each acknowledged that B.W. had made academic progress during her two years at BOCES. Ms. Priestner-Werte further stated that B.W. had made "extraordinary progress" in her behavior between 1992 — when she had appeared "almost psychotic" — and the present. (Ex. 119.) [a]ll parties nevertheless recognized that no improvement had been made with respect to one social problem [persisted]: B.W. simply refused to interact with other children. The Walczaks [urged a residential placement as the best means to address] thought this problem[.] might be remedied if their daughter were placed in a residential facility with children more like herself, particularly in light of her positive experience at camp. [CSE Chairman] Ms. Flynn [opposed] explained that she could not support this request because [she considered a residential placement unnecessarily restrictive to address B.W.'s needs.] the School Board was required to educate B.W. in the least restrictive environment that would meet her needs. She considered a residential placement, which would remove B.W. from her home and family, unnecessarily restrictive for this child. (Tr. 176-77.) Ultimately, [T]he CSE [concurred and] concluded that a residential placement was not essential to B.W.'s educational progress. It proposed that she [B.W.] be educated in the year-round BOCES day program for the developmentally disabled[.], with continued speech therapy and counseling to help improve her social skills and behavior. (Ex. 120, 174.)
[42] On February 16, 1995, the Walczaks formally challenged the 1995-96 IEP and requested a hearing. (Ex. 160.) The initial March hearing date was postponed to allow the School District to correct an acknowledged defect in the IEP: its failure to identify B.W.'s specific class grouping at BOCES. (Tr. 18, 26-28.) [Ultimately] On March 30, 1995, the CSE reconvened to review B.W.'s proposed IEP. (Ex. 122-28.) In response to various parental concerns, numerous amendments were made to define B.W.'s academic goals with more specificity and to ensure the development of her pre-vocational and daily living skills. (Ex. 161-73.) A proposed [that B.W. be placed in the higher functioning of] class grouping was also identified. (Ex. 127.) BOCES officials explained that two developmentally disabled classes [that] would be established in 1995-96 for children [her] age[.]s eleven to thirteen. B.W. would be assigned to the higher functioning of the two. (Id.) When the Walczaks questioned the propriety of the proposed grouping, BOCES officials agreed to undertake a more particularized social analysis of the children involved. (Ex. 127-28.) They reviewed the most recent yearly evaluations of the students who might be grouped together with B.W. (Tr. 287-88, 290-95.) They further attempted to quantify the social skills and management needs of each student by having teachers and parents complete a social inventory form. (Tr. 130, 348, 350, 414-15.) As a result, a revised grouping was presented for CSE review on April 26, 1995. (Tr. 130, Ex. 129.) The children in the proposed grouping had IQ scores that generally ranged from 63 to 90. Only one child, with a score of 46, was significantly lower. B.W.'s most recent IQ scores — 72 when tested by Dr. Liss; 65 when tested by Mr. Jordan — placed her in the middle of this group. The reading scores for the group ranged from below kindergarten to fourth grade. B.W.'s reading level of high second to low third grade placed her at the high end of this group, with four other students in her range. The group's math performance ranged from first grade to high third grade. B.W. had tested in the second to third grade range, which was again consistent with four of the other children. The results of [a] the social skills inventory showed that B.W. ranked at the bottom of the proposed grouping in terms of her social skills and at the top in terms of behavior. (Ex. 129.) After considering this information, the CSE adhered to its recommendation of a BOCES placement for B.W. (JA 134.)
[43] (5) Testimony at the Administrative Hearing
[44] Each witness who testified at the administrative hearing acknowledged that B.W. had made both academic and social progress in the years 1993-95, the period when she was enrolled at BOCES. They disagreed as to whether the BOCES program had contributed to this progress and whether it could adequately address B.W.'s continuing needs.[45] B.W.'s speech teacher, Ms. Makower, and her most recent classroom teacher, Ms. Napolitano, provided the most insight into B.W.'s progress at BOCES. Ms. Makower testified that [in the course of two years at BOCES, B.W. had steadily improved her ability to remain focused on a designated task, which in turn had permitted her to when B.W. first entered BOCES, her inappropriate behavior and lack of focus were so persistent that it was exhausting to work with her. (Tr. 494, 508.) Over two years, however, a marked improvement had been realized. (Tr. 494, 510; Ex. 201.) Ms. Makower explained that while B.W. could still lapse into inappropriate behavior (Tr. 508), it was now possible to redirect her attention to a designated task. (Tr. 512.) As a result, Ms. Makower had been able to help B.W. improve the intelligibility of her speech (Tr. 505) and her ability to follow directions (Tr. 508-09), skills important to both the child's academic progress and her social development. Ms. Makower made plain that she was committed to helping B.W. achieve a more ambitious goal: internalizing the lessons learned in various structured exercises so that she could apply them to other situations, particularly social ones. (Tr. 521.) Ms. Napolitano testified that B.W. was less disruptive in class and increasingly able to focus on lessons and complete assignments without constant teacher intervention. was equally candid in assessing the child's deficits, achievements, and future needs. She explained that, at the beginning of the 1994-95 academic year, B.W. had required almost constant teacher intervention to remain focused and to complete class work. (Tr. 622.) By the end of the year, however, B.W. was often able to work independently on class assignments (Id.) Ms. Napolitano further testified that B.W.'s behavior had improved steadily throughout the year. B.W. was less disruptive and easier to redirect to a particular task. (Tr. 598-99.) Ms. Napolitano acknowledged that B.W.'s limited attention span and comprehension skills continued to hamper her academic progress. (Tr. 607-08.) She also readily acknowledged that the principal future concern for B.W. was the development of her social skills. (Tr. 591.) She explained that she had repeatedly tried to set up situations for B.W. to interact with other children, but, thus far, B.W. had resisted. (Tr. 590, 599, 608-11.). Indeed, efforts toward the end of the year to have B.W. participate in a choral program had to be abandoned when the child became distraught. (Tr. 615.) Nevertheless, Ms. Napolitano [She] supported the proposed 1995-96 IEP BOCES placement [because the academic and social goals it set for B.W. were realistic.] (Tr. 597, 599-600.) She viewed the goals set in the IEP as entirely realistic for B.W. (Tr. 596-97.) Moreover, precisely because she had seen B.W. make progress in her own class of twelve students over the last year, she thought that B.W. could [continue to] be academically and socially successful in a class of that size. (Tr. 596, 633.)
[46] [Ms. Napolitano acknowledged that none of her efforts to get B.W. to interact with her peers had been successful.] Ms. Flynn, Mr. Jordan, and Louise Baines, Supervisor of the developmentally disabled program, also testified [that this concern would be addressed more directly in the developmentally disabled program.] in support of the proposed IEP. Ms. Flynn's testimony was informed by more than twenty-five years of experience in special education, her personal familiarity with the BOCES programs, and her dozen or more observations of B.W. in Ms. Napolitano's class. (Tr. 123, 138.) Indeed, she had observed B.W.'s classroom performance more frequently than any of the other witnesses with the exception of B.W.'s actual teachers. Ms. Flynn stated that, in class, [She described] B.W. [as] appeared to be a self-motivated child who[, in two years at BOCES, had learned to maintain her focus and] had reached the point where she could work independently. (Tr. 138.) Although B.W. did, on occasion, still perseverate on irrelevancies, Ms. Flynn saw that BOCES teachers were increasingly able to refocus the child onto her work. (Tr. 149.) B.W.'s behavior had also improved considerably while in the BOCES program. Specifically, she was better able to control impulsive conduct, such as the inappropriate touching of classmates. (Tr. 149, 191). Ms. Flynn [recognized the need to get B.W. to interact with other children.] acknowledged that, despite the efforts of her teachers, B.W. still did not interact with other children. (Tr. 139.) It was precisely for this reason that [S]he supported the proposed IEP [precisely because]. She explained that the BOCES developmentally disabled program [would] provided [B.W. with many opportunities to work on her social skills without the unnecessary restrictionsPage 127of a residential placement.] a small, structured environment that focused on social skills. (Tr. 142, 201, 311.) Ms. Flynn opposed a residential placement for B.W., whether at Maplebrook or elsewhere, because she viewed a placement that removed a twelve-year old child from her home and parents as a highly restrictive "last resort" to be employed only when there was no other way of providing an education. (Tr. 176-77.) In light of B.W.'s progress at BOCES, Ms. Flynn simply did not think that the child needed to be institutionalized.
[47] Mr. Jordan agreed[.] with this assessment. He testified that the BOCES developmentally disabled program provided the sort of structure, support, and supervision B.W. needed to succeed. (Tr. 340.) [Moreover, its emphasis on practical life skills would routinely require B.W. to interact with other children.] Ms. Baines explained that BOCES teachers routinely used a multisensory approach in introducing and reinforcing lessons. (Tr. 434-35.) She further testified that the program emphasized hygiene, cooking, household chores, and other practical life skills that B.W. needed to acquire. (Tr. 436.) Mr. Jordan noted that the program's emphasis on life skills would promote peer interaction for B.W. because students were routinely required to work cooperatively on various tasks. (Tr. 359.) Ms. Baines was [even] more emphatic, testifying that social skills were emphasized "100% of the time" in the BOCES developmentally disabled program. (Tr. 436-37.) Ms. Flynn, Mr. Jordan, and Ms. Baines sought to assuage the Walczaks' concern about any discrepancy between their daughter's social and management needs and those of the children in the proposed grouping. They explained that the high behavior assessment scores of some children did not necessarily reflect destructive or aggressive tendencies. (Tr. 443.) Factors such as moodiness, unsociability, fears, and even nervous habits had been taken into account. (Tr. 342-46, 350-54; Ex. 131-35.) Ms. Baines stated that, in fact, the children in the proposed class were all very conversational and "accepting" students, who tended to include others in their activities and who did not exhibit any unusual harshness. (Tr. 438.) Precisely because of the nature of these children and their more advanced social skills, it was hoped that B.W. would find role models in the class to help her improve her own social conduct. (Tr. 360, 432.) Of course, no witness could guarantee this outcome. Ms. Napolitano and Ms. Makower noted that B.W. had tended not to model her behavior on that of other children during the 1994-95 school year. (Tr. 367-68, 498, 526.) Ms. Priestner-Werte and Mr. Jordan, however, both thought that B.W. would benefit from positive role models. (Tr. 360, 669, 674.) Certainly, no witness testified that B.W. would benefit more from being placed with children who had poorer social skills than her own.
[48] [Both] Dr. Liss [and B.W.'s psychotherapist, Ms. Priestner-Werte, nevertheless] testified in opposition to the 1995-96 IEP. While she acknowledged [favor of placing B.W. in a residential facility such as Maplebrook. While neither witness questioned] that the academic and social goals set for B.W. in the proposed IEP[,] were appropriate (Tr. 725), she [Dr. Liss insisted that B.W. could only achieve the outlined social goals in a residential facility. Ms. Priestner-Werte, however, acknowledged that the BOCES developmentally disabled program was able to meet B.W.'s educational and social needs. She favored a residential placement because of the intensity and consistency afforded by a such a program.] nevertheless insisted that B.W. needed to be placed in a residential facility in order to make any social progress. (Tr. 735, 752.) She testified that in terms of "meeting [B.W.'s] social needs," the BOCES placement had been "categorically . . . inappropriate." (Tr. 755.) This was, of course, somewhat inconsistent with her January 1995 report wherein she had described the BOCES setting as "appropriate to [B.W.'s] needs until this time." (Ex. 194.)
[49] Dr. Liss also questioned the class grouping proposed for B.W. in the 1995-96 IEP. She specifically objected to the fact that some of the children in the proposed class were diagnosed as mentally retarded, (Tr. 722) although she did not explain why this was significant given their generally compatible IQ scores. Similarly, she conclusorily stated that the reported academic, social, and behavioral levels of the children in the proposed grouping were too diverse to permit the class to have a common focus. (Tr. 723.) She also testified that the life skills component of the BOCES developmentally disabled program provided only a small degree of the help B.W. needed in this area. (Tr. 741-42.) She was adamant that anything other than a full residential program for B.W. would be inadequate. (Tr. 735.)
[50] Ms. Priestner-Werte, the psychotherapist who had treated B.W. on a weekly basis for almost two years, also testified in support of a residential placement, but, unlike Dr. Liss, she did not state that this was the only program in which B.W. could make progress. On direct examination by counsel for the Walczaks, she specifically acknowledged that the proposed BOCES placement could meet B.W.'s educational and social needs. The reason she favored Maplebrook was because of the intensity and consistency afforded by a residential program.
A. Do you have an opinion whether [the proposed BOCES placement] can meet B.W.'s educational and social needs?
A. Yes.
Q. What is it?
A. I think BOCES can meet her educational and social needs.
Q. You think it can?
A. Yes.
Q. Do you think Maplebrook can meet her needs?
A. Yes.
Q. One better than the other?
A. The advantage that Maplebrook has is in consistency and the fact that it's a therapeutic environment and provides these kinds of opportunities in a much more intensive way.
[51] (Hearing Transcript at 671-72.)
[52] In describing B.W.'s social development, Ms. Priestner-Werte explained that in 1992, when she first started treating the child, her behavior was very "bizarre." (Tr. 691.) In the intervening three years, however, B.W. had slowly improved her social skills. Notably, she had acquired the ability to have some appropriate social conversations and to share experiences with others. (Id.) Ms. Priestner-Werte expressed some reservations as to whether the BOCES staff fully appreciated B.W.'s behavioral difficulties. (Tr. 693.) Nevertheless, she described the staff as very cooperative whenever she made suggestions regarding B.W. (Tr. 694.) She also acknowledged, based on her personal observations of a BOCES class, that the program provided the high level of structure needed by B.W. (Tr. 671-72.) Ms. Priestner-Werte testified that the Walczaks had reinforced BOCES' efforts by providing a similar strong structure at home. (Tr. 693.) She reiterated, however, that she favored a Maplebrook placement because of the consistency afforded by a residential program and the around-the-clock opportunities for B.W. to work on her social skills. (Tr. 689.)
[53] (6) The Hearing Officer's Decision
[54] On September 28, 1995, the hearing officer issued a fourteen-page decision in favor of the School District. (JA 27-42.) After carefully reviewing the evidence developed at the hearing, he noted that the parties' primary dispute focused on the Walczaks' contention that their daughter [whether B.W. needed a residential placement or whether she could be educated in a day program.] needed to be placed in a full-time residential facility. (JA 41.) He recognized, however, that the School District had the burden of establishing the appropriateness of the proposed BOCES placement. (JA 39.) In finding that it had carried this burden, the hearing officer cited specifically to the testimony of Ms. Napolitano, B.W.'s classroom teacher, that the academic components of the 1995-96 IEP were realistic (JA 40), and to the testimony of Ms. Priestner-Werte that the BOCES program could meet the child's educational and social needs. (JA 41.) He further credited the testimony of those witnesses who indicated that the proposed class grouping would place B.W. with children who would be appropriate social companions for her. (JA 41.)[55] The hearing officer acknowledged that a residential placement such as Maplebrook could afford B.W. more opportunities for social interaction than a day program such as BOCES, and that this might increase the chance of improving the child's social skills. (JA 41-42.) This single factor, however, was insufficient to persuade him that the proposed placement of B.W. in the BOCES day program was inadequate. Citing to this court's decision in Tucker v. Bay Shore Union Free Sch. Dist.,873 F.2d 563, 567 (2d Cir. 1989),3the hearing officer explained that, while the proposed IEP might not provide everything sought by loving parents, it was nevertheless "reasonably calculated to provide educational benefits for the child." (JA 42.) Accordingly, the IEP was upheld.
[56] b. The Appeal to the State Education Department
[57] Sometime after the conclusion of the 1994-95 school term, the Walczaks removed B.W. from the BOCES program and enrolled her at Maplebrook. They appealed the hearing officer's decision in favor of the School District to the New York State Education Department and sought reimbursement for their expenses at Maplebrook. On December 15, 1995, a state review officer upheld the proposed BOCES placement.[58] In a single-spaced eleven-page decision, the review officer meticulously reviewed the evidence developed in the administrative hearing. (JA 128-38.) Preliminarily, he found that the proposed IEP adequately described B.W.'s academic and social needs and provided reasonable annual goals and short-term instructional objectives to meet those needs. (Id.) Considering the propriety of the BOCES placement, the review officer specifically rejected the Walczaks' argument that "inherent limitations" in the BOCES program had prevented B.W. from making anything but slight academic and social progress in her years there. (Id.) He noted that BOCES used aPage 128multisensory instructional approach, which all witnesses had recognized as best suited to B.W.'s particular needs. (Id.) He further cited to the reports of B.W.'s two classroom teachers indicating that the child had advanced academically at BOCES to the point where she could work at the second to third grade level. (JA 131-32.) To the extent that B.W.'s progress was sometimes slow and inconsistent, the review officer held that this was more reflective of the nature and extent of the child's disabilities than of any inherent inadequacy in the BOCES program. (JA 137.) He found no support in the record for the claims that the BOCES staff was not trained to work together or that B.W. needed to be in a smaller class to make reasonable progress. (Id.)
[59] As to the contention that B.W. had made only slight social progress while at BOCES, the review officer cited to Dr. Liss's observation of "remarkable" improvement in the child's social skills between 1992 and 1995. (Id.) [He specifically rejected] To the extent Dr. Liss[`s opinion] testified that B.W.'s social skills could not be developed adequately in any day program [since she], the officer rejected this opinion, noting that Dr. Liss had not explained why the skills she deemed important — learning to live with others, take turns, say how she feels, smile at the appropriately time (Tr. 734-35) — could not be developed in a non-residential program. (Id.) The review officer observed that although Ms. Priestner-Werte considered a residential placement preferable, she had testified that the BOCES day program could meet B.W.'s educational and social needs. (Id.) Thus, he found no basis in the record for concluding that a highly restrictive residential placement was necessary for B.W. to make reasonable educational progress. (Id.)
[60] The review officer also rejected the Walczaks' challenge to the proposed class grouping [proposed] for B.W. Relying on the class profile received into evidence, as well as the testimony of Ms. Flynn and Ms. Baines, he found that the children's academic, social, physical, and management needs were sufficiently similar for them to be educated together. (JA 138.)
[61] In sum, the [state] review officer rejected the Walczaks' appeal [carefully reviewed the evidence] and found that the School District had met its burden of proof with respect to the proposed program and placement offered to B.W. for the 1995-96 term. (Id.)
[62] 5. The Summary Judgment Motion Before the District Court
[63] The Walczaks next challenged the IEP by filing this IDEA action in federal court. The School District moved for summary judgment relying on the administrative record. In opposing this motion, the Walczaks disputed the School District's assessment of that record and sought to supplement it with materials relating to B.W.'s progress after a year at Maplebrook. These supplemental materials basically fall into four categories: (1) affidavits from Mr. Walczak, Dr. Liss, and Maplebrook officials; (2) periodic assessments of B.W. by her Maplebrook teachers; (3) year-end test results from Maplebrook; and (4) the School District's evaluation of B.W. in preparation for its 1996-97 IEP recommendation.[64] While the affidavits are unequivocal in reporting tremendous social and academic progress by B.W. at Maplebrook, (JA 168-73, 319-22, 323-27, 328-29) a careful reading of the teacher assessments and objective test results presents a more complex picture. For example, by mid-year, [These materials suggest that B.W. made acceptable, if not dramatic, academic progress at Maplebrook. Her social progress was more significant. B.W. began to establish friendships with other children and successfully participated Maplebrook teachers reported that B.W. was interacting more with children and, with guidance, building friendships. (JA 249-50.) She was also participating more actively in class (JA 258) and in group activities[. Dr. Liss reported that B.W.'s "living skills" had improved from the level of a five-year old to those of a nine-year old. such as assemblies, team sports, and cheerleading. (JA 256) These positive reports were tempered, however, by continued observations of the [Still, Maplebrook teachers continued to observe certain] problems that had long afflicted B.W.: perseverative behavior, inability to remain focused, and inappropriate conversation with and touching of peers. (JA 242, 246, 249-50, 255, 257.)
[65] When Dr. Liss administered the customary battery of tests to B.W. in May 1996, she found that the child could read aloud comfortably at the third grade level with some oral comprehension of fourth grade material. Without a calculator, she displayed first-grade level math skills with a calculator, she achieved fourth grade results. Dr. Liss described this as "reasonably good" academic progress. (JA 285.) When the School District tested B.W. in the spring of 1996, the results were less encouraging. B.W.'s reading and written language skills were at the middle-to-high second grade level. Her math scores — obtained without allowing her to use a calculator — were at the high kindergarten level. (JA 289.) School District officials did not think these scores reflected much academic growth over those recorded at the end of the previous BOCES term. (Id.) Not surprisingly, there was some dispute between the parties as to the degree of anxiety provoked by the School District's testing and its possible effect on B.W.'s scores. (Id.)
[66] In assessing B.W.'s social growth in the year at Maplebrook, Dr. Liss compared responses Mrs. Walczak had given to various inquiries in September of 1995 with those of a Maplebrook teacher in May 1996. These suggested that, before entering Maplebrook, B.W.'s living skills were at the level of a five-year old. After a year in a Maplebrook dormitory, B.W. had improved to the level of an eight-to-nine-year old. (JA 284.) Dr. Liss also observed B.W. on one occasion at Maplebrook. She saw B.W. join in group activities, talk with other children, and make appropriate eye contact with them. (JA 320-21, 285.) When Mr. Jordan attended one of B.W.'s Maplebrook classes, his observations were quite different. He reported that B.W. was having more difficulty with the lesson material than the other children. She did not volunteer during class. Neither did she interact with other children. (JA 288.) Again, the parties debated the extent to which outside factors, such as B.W.'s knowledge that she was being observed, could have contributed to her performance on a particular day. (Id.)
[67] Ultimately, the CSE [The School District] remained unconvinced that a residential placement was essential to B.W.'s receipt of an appropriate education. It recommended that [F]or the 1996-97 school year, [it again recommended that] B.W. be educated in the BOCES developmentally disabled day program. (JA 290-91.)
[68] Based on its own review of the administrative record, as well as these supplemental submissions, the district court denied the School District's motion for summary judgment and, sua sponte, entered judgment in favor of the Walczaks. In so ruling, the court [made only general] did not particularize its factual findings[, without referring to the specific evidence in the record. It held that]. It simply adopted the conclusions advanced by the Walczaks in their brief. The administrative proceedings in this case, on careful review, reveal that the school district did not show within the first criterion of the Burlington test4— that the services offered by the school district were adequate or appropriate. The testimony adduced at the hearing establishes by a clear preponderance of the evidence "that the inherent limitations in the BOCES'Page 129program make it impossible for B.W. to adequately advance, educationally or socially, through the program offered." [Parents' Post-Trial Brief at 10, 8/24/95]. According to the records provided, the BOCES staff is not trained to work closely together and does not [do] so; B.W. needs a smaller group setting than that proposed by BOCES in order to learn; the BOCES program operates only during the day, while B.W. needs a more structured environment around the clock, "replete with opportunities for social engagement with other children;" and that B.W. needs a specialized program and a supportive nurturing educational environment in order to learn in the most effective way. Id. at 11.
As to the other two standards set by the Burlington Court, the plaintiffs clearly have met these requirements, proving through the Maplebrook School's teachers and administrators that the services selected by the parents were appropriate and that equitable considerations favor the parents['] claim.
[69] Walczak v. Florida Union Free Sch. Dist., No. 96 Civ. 1634, at 6-7. (JA 336-37.)
[70] Discussion
[71] I. The Standard of Judicial Review in IDEA Cases
[72] When the parents of a disabled child file suit under IDEA to challenge a state-proposed IEP and when the relief they seek includes reimbursement of expenses incurred at a private school, an award will be entered in their favor if it appears (1) that the proposed IEP was inadequate to afford the child an appropriate public education, and (2) that the private education services obtained by the parents were appropriate to the child's needs. See School Comm. of Burlington v. Department of Educ. of Mass.,471 U.S. 359, 370 (1985); accord Florence County Sch. Dist. Four v. Carter,510 U.S. 7, 12-14 (1993) (where both prongs of Burlington test are satisfied, court may require state to reimburse parents for expenses incurred at a private school even though it is not on state-approved placement list); Still v. DeBuono,101 F.3d 888, 891 (2d Cir. 1996). In this case, the parties' dispute focuses only on the first factor, i.e., the adequacy of the 1995-96 IEP proposed for B.W.[73] [Two factors are relevant to] In assessing the adequacy of a challenged IEP[:], a federal court must determine (1) [did] whether the state compl[y]ied with the procedural requirements of IDEA, and (2) [was] whether the challenged IEP was "reasonably calculated to enable the child to receive educational benefits." Board of Educ. v. Rowley, 458 U.S. at 206-07; accord Mrs. B. v. Milford Bd. of Educ., 103 F.3d at 1120.
[74] The initial procedural inquiry is no mere formality. As the Supreme Court noted in Rowley, Congress's emphasis in IDEA "upon full participation of concerned parties throughout the development of the IEP," together with the requirement for federal approval of state and local plans, reflects a "conviction that adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP." 458 U.S. at 206. In this case, thePage 130Walczaks do not challenge the School District's compliance with IDEA's procedural requirements. The record confirms that the Walczaks, the various experts on whom they relied, and their attorney were all actively involved in the development of the challenged IEP. Indeed, numerous amendments were made at their suggestion. What the Walczaks assert is that, despite compliance with required procedures, the School District failed to produce a 1995-96 IEP that was reasonably calculated to afford B.W. educational benefits as required by the second prong of the Rowley test.
[75] IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP. The Supreme Court, however, has specifically rejected the contention that the "`appropriate' education" mandated by IDEA requires states to "maximize the potential of handicapped children." 458 U.S. at 196 n. 21, 189. The purpose of the Act was "more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside." Id. at 192; accord Lunceford v. District of Columbia Bd. of Educ.,745 F.2d 1577, 1583 (D.C. Cir. 1984) (Ruth Bader Ginsburg, J.) (because public "resources are not infinite," federal law "does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child"). Plainly, however, the door of public education must be opened for a disabled child in a "meaningful" way. Board of Educ. v. Rowley, 458 U.S. at 192. This is not done if an IEP affords only "trivial" educational benefits. Mrs. B. v. Milford Bd. of Educ., 103 F.3d at 1121 (quoting Polk v. Central Susquehanna Intermediate Unit 16,853 F.2d 171, 183 (3d Cir. 1988). An appropriate public education under IDEA is one that is "likely to produce progress, not regression." Cypress-Fairbanks Indep. Sch. Dist. v. Michael F.,118 F.3d 245, 248 (3d Cir. 1997) (internal citation omitted), cert. denied, 118 S.Ct. 690 (1998).
[76] The initial responsibility for determining whether a challenged IEP does confer meaningful educational benefits on a disabled child rests with administrative hearing and review officers. Their rulings are then subject to "independent" judicial review. Board of Educ. v. Rowley, 458 U.S. at 205 (quoting S. Conf. Rep. No. 94-455, at 50 (1975), reprinted in 1975 U.S. Code Cong. Admin. News 1480, 1503). The Supreme Court has cautioned that this "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 they review." Id. at 206. While federal courts do not simply rubber stamp administrative decisions, they are expected to give "due weight" to these proceedings, mindful that the judiciary generally "lack[s] the `specialized knowledge and experience' necessary to resolve `persistent and difficult questions of educational policy.'" Id. at 206, 208 (quoting San Antonio Indep. Sch. Dist. v. Rodriguez,411 U.S. 1, 42 (1973)); accord Mrs. B. v. Milford Bd. of Educ., 103 F.3d at 1120; Garro v. State of Connecticut,23 F.3d 734, 736 (2d Cir. 1994). Deference is particularly appropriate when, as here, the state hearing officers' review has been thorough and careful. See Capistrano Unified Sch. Dist. v. Wartenberg,59 F.3d 884, 891 (9th Cir. 1995).
[77] II. Application of these Standards to Review of the Challenged 1995-96 IEP
[78] To conduct an IEP review that was "independent" without "impermissibly meddling in state educational methodology," Mrs. B. v. Milford Bd. of Educ., 103 F.3d at 1121 (citing Board of Educ. v. Rowley, 458 U.S. at 203, 207,)] For judicial review of the IEP challenged in this case [to be both "independent" and "deferential," the district court was required to examine the administrative record, as well as any new submissions by the parties, with particular attention to [examine the record before it with particular attention to any "objective evidence" of whether B.W. would progress or regress if educated in a day program, id.] whether a preponderance of the objective evidence indicates that B.W. has made progress or regressed in the BOCES day program. This focus derives from the distinction drawn by the Supreme Court between a federal court's proper examination of "objective evidence of progress" and its "impermissible meddling in state educational methodology." Mrs. B. v. Milford Bd. of Educ., 103 F.3d at 1121 (citing Board of Educ. v. Rowley, 458 U.S. at 203, 207). A review of objective evidence is easiest, of course, when a disabled child is in a mainstream class. In such circumstances, the attainment of passing grades and regular advancement from grade to grade are generally accepted indicators of satisfactory progress. See Board of Educ. v. Rowley, 458 U.S. at 207 n. 28 (deaf student's ability to perform better than average child in class and her easy advancement from grade to grade indicated that she was receiving an appropriate education despite School District's failure to provide her with a sign language interpreter). Nevertheless, this court has looked to test scores and similar objective criteria even in cases where a disabled child has been educated in self-contained special education classes. See Mrs. B. v. Milford Bd. of Educ., 103 F.3d at 1121. In such circumstances, the record must, of course, "be viewed in light of the limitations imposed by the child's disability." Id.[79] In its brief decision in this case, the district court did not point to any objective evidence in the record that led it to reject the administrative officers' conclusions as to the adequacy of the 1995-96 IEP. See Kerkam v. McKenzie, 862 F.2d 884, 887 (D.C. Cir. 1989) ("a court upsetting the [administrative] officer's decision [about an IEP] must at least explain its basis for doing so"); Town of Burlington v. Department of Educ.,736 F.2d 773, 792 (1st Cir. 1984) (in making its own independent ruling, a court must carefully consider the findings made during administrative review "and endeavor to respond to the hearing officer's resolution of each material issue"), aff'd,471 U.S. 359(1985); accord Gregory K. v. Longview School Dist.,811 F.2d 1307, 1311Page 131(9th Cir. 1987) (adopting First Circuit standard). Instead, as the excerpt quoted supra indicates, the district court here cited only to the parents' brief to support [its] a finding that B.W. had regressed socially in 1994-95. (JA 335.) Then, without any discussion of the objective evidence of B.W.'s academic progress while at BOCES, the court rejected the proposed IEP on the grounds that "inherent limitations" in the BOCES program made it impossible for B.W. to make satisfactory progress in that placement. (JA 336.) These limitations apparently included (1) the fact that B.W. would be educated in a class of twelve students at BOCES, rather than in a smaller group; (2) the purported failure of BOCES teachers to work closely together; (3) the fact that BOCES was not a residential facility providing around-the-clock structure and social engagement; and (4) the BOCES' program's inability to provide B.W. with the sort of "specialized program and . . . supportive nurturing educational environment" she needed in order to learn most effectively. (JA 336.) While it is undisputed that BOCES is not a residential program, the other conclusions of the district court are not supported by the objective evidence.
[80] That evidence, which the court has detailed in discussing the background to this case, demonstrates that B.W. made significant academic and social progress while in a twelve-student class in the BOCES day program. [b]efore B.W. entered BOCES, [her] the parents' own expert, Dr. Liss, found that the child's reading and math skills tested at [only] the first grade level. When [the Walczaks' own expert,] Dr. Liss[,] again evaluated B.W. in early 1995, mid-way through her second year at BOCES, her reading scores [had improved to] were at the second to mid-third grade level, and her arithmetic skills were at the second grade level. B.W.'s classroom teacher, Ms. Napolitano, reported that in the more structured and supportive atmosphere of the BOCES classroom, B.W. was actually able to work at an even higher level, particularly in math where she regularly completed exercises from a third grade book. For this reason, Ms. Napolitano was convinced that B.W. could continue to progress in a twelve-student class.
[81] These objective academic achievements are uncontradicted and certainly not "trivial." In fact, they are impressive when considered in light of the significant social problems that impeded B.W.'s academic progress when she first entered BOCES. Ms. Priestner-Werte described B.W.'s social behavior in 1992 as bizarre, "almost psychotic." Dr. Liss confirmed that, at that time, the child was unable to follow simple directions or focus on an assigned task. She perseverated constantly on irrelevancies and could not express herself intelligibly. The testimony of Ms. Napolitano and Ms. Makower, as well as the quarterly reports from BOCES, plainly indicate that concerted efforts were made by all of B.W.'s BOCES teachers to address these specific social problems. Progress was sometimes slow, but after B.W. had spent two years at BOCES, Ms. Napolitano was able to report that the child was less disruptive, that she could remain more focused, and that she was even able to work independently. B.W. did continue to perseverate, but even this problem was under more control than it had been initially. Further, B.W. could now speak more clearly, an obvious prerequisite to improving her social interaction. Dr. Liss and Ms. Priestner-Werte each confirmed that the social progress made by B.W. during the years she was enrolled at BOCES was remarkable.5
[82] This case is thus completely distinguishable from Mrs. B. v. Milford Bd. of Educ.,103 F.3d 1114. There, all the evidence indicated that the disabled child's social problems were steadily worsening, with adverse consequences on her education. One teacher even conceded that the child was not learning anything in the day program in which she was placed. See id. at 1117. Under these circumstances, an administrative hearing officer concluded that a temporary residential placement was essential if the child was ever to make any academic progress. The district court concurred and we affirmed. Cases from other circuits point to similar objective evidence of a child's regression in a day program before finding a residential placement to be required by IDEA. See, e.g., Seattle School Dist. No. 1 v. B.S.,82 F.3d 1493, 1497 (9th Cir. 1996) (where child's assaultive behavior problems had escalated so as to require restraints, a period of hospitalization, and ultimately expulsion from school day program, such that no educationalPage 132services were provided for six months, administrative officer and district court properly ordered residential placement); M.C. v. Central Regional Sch. Dist.,81 F.3d 389, 392 (3d Cir.) (where objective evidence indicated that sixteen-year old had regressed in day program from a point where he had been able to dress and feed himself independently to a point where he could no longer do so, residential placement was plainly required), cert. denied, 117 S.Ct. 176 (1996); Abrahamson v. Hershman,701 F.2d 223, 224-25 (1st Cir. 1983) (child who "would not respond to his name, did not seem to understand anything at all, and had to be locked into the classroom to prevent him from running off" could not be educated in a day program but required a residential placement).
[83] While some children's disabilities may indeed be so acute as to require that they be educated in residential facilities, it is appropriate to proceed cautiously in considering such highly restrictive placements. IDEA's preference is for disabled children to be educated in the least restrictive environment capable of meeting their needs. The Walczaks argue that the statutory preference is primarily concerned with educating disabled children together with their non-disabled peers. They submit that in cases such as this one, where everyone recognizes that no mainstreaming is possible for B.W., the preference has no applicability. (See Walczak Br. at 15 n. 11.) This court disagrees. The norm in American public education is for children to be educated in day programs while they reside at home and receive the support of their families. A "[r]esidential placement is, by its nature, considerably more restrictive than local extended day programming." Carlisle Area School v. Scott P.,62 F.3d 520, 534 (3d Cir. 1995), cert. denied, 116 S.Ct. 1419 (1996). Thus, "[e]ven in cases in which mainstreaming is not a feasible alternative," the statutory preference for a least restrictive placement applies. Sherri A.D. v. Kirby,975 F.2d 193, 206 (5th Cir. 1992). The objective evidence in this case [demonstrates] supports the School District's conclusion that B.W. could make meaningful academic and social progress in a day program. While her BOCES teachers have candidly acknowledged the difficulties encountered in teaching B.W., the overall picture is one of improvement, not regression. In sum, the record does not support the district judge's conclusion that a residential placement was essential to provide B.W. with an appropriate public education.
[84] It appears from the Walczaks January 27, 1995 letter to CSE Chairman Flynn that their purpose in seeking a residential placement for B.W. was "to obtain the maximum interventions" for her "so that she can reach her true potential." See Walczak Letter to E. Flynn, Jan. 27, 1995. (Ex. 198.) While the parents' wishes are understandable, IDEA does not require states to develop IEPs that "maximize the potential of handicapped children." Board of Educ. v. Rowley, 458 U.S. at 189. What the statute guarantees is an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d at 567 (internal citation omitted); see Carlisle Area School v. Scott P., 62 F.3d at 533-34 (school districts "need not provide the optimal level of services, or even a level that would confer additional benefits, since the IEP required by IDEA represents only a `basic floor of opportunity'" (quoting Board of Education v. Rowley, 458 U.S. at 201)); Kerkham v. McKenzie, 862 F.2d at 886 ("proof that loving parents can craft a better program than a state offers does not, alone, entitle them to prevail under the Act"). A disabled child is "not . . . entitled to placement in a residential school merely because the latter would more nearly enable the child to reach his or her full potential." Abrahamson v. Hershman, 701 F.2d at 227. Indeed, it would violate IDEA's preference for the least restrictive educational setting to move a child from a day program where she is making progress to a residential facility simply because the latter is thought to offer superior opportunities. See Carlisle Area School v. Scott P., 62 F.3d at 535 (although disabled child might have benefitted more from residential placement, "the district would have erred if it had ordered the allegedly `better' residential placement since . . . an IEP must not only be designed to confer some educational benefit, but it also must deliver the programming in the least restrictive educational environment").Page 133
[85] The Walczaks insist that a residential placement was not simply more desirable but essential for B.W., particularly if she was to make social progress. They point to the conceded failure of the BOCES day program to help B.W. overcome her resistence to interacting with other children. They contrast the emotional distress she exhibited when urged to participate in a BOCES choral program with her present participation in a variety of group activities at Maplebrook. The inadequacy of an IEP is not established, however, simply because parents show that a child makes greater progress in a different program. See Fuhrmann v. East Hanover Bd. of Educ.,993 F.2d 1031, 1039-40 (3d Cir. 1993) (child's "dramatic progress" in alternative program chosen by parents does not, by itself, establish that proposed IEP was not "reasonably calculated to enable the child to receive educational benefits" (quoting Board of Educ. v. Rowley, 458 U.S. at 206-07)). In any event, the evidence in this case does not support the contention that, because B.W. had not yet interacted with other children while in the BOCES program, the proposed IEP was unlikely to afford her meaningful educational benefits.
[86] Without minimizing the seriousness of B.W.'s problem with peer interaction, it appears that, among the numerous social deficiencies that plagued B.W. when she entered BOCES, this was the one that least directly interfered with her ability to make academic progress. Certainly, it was of less immediate concern to her receipt of educational benefits than her lack of focus, [or] her disruptive behavior[.], or her chronic perseveration on irrelevancies. Over two years, BOCES teachers had helped B.W. improve in [both] all these areas, and significant academic and social gains were thereafter realized. Under these circumstances, the BOCES program cannot be conclusorily dismissed as "inherently deficient," nor its teacher coordination broadly faulted, nor its structure criticized because it failed simultaneously to overcome B.W.'s resistance to peer interaction. IDEA requires states to provide a disabled child with meaningful access to an education, but it cannot guarantee totally successful results. See Board of Educ. v. Rowley, 458 U.S. at 192 (citing S. Rep. No. 94-168, at 11 (1975), reprinted in 1975 U.S. Code Cong. Admin. News 1425, 1435).
[87] In any event, the challenged IEP specifically addressed B.W.'s need to interact with other children, and Dr. Liss acknowledged that the goals established therein were appropriate[.] for B.W. Her concern was with BOCES' ability to help the child reach these goals. As the hearing officer properly observed, [however,] Dr. Liss never satisfactorily explained why she believed B.W. could only improve her interaction skills in a residential program. The BOCES developmentally disabled program was, after all, designed to emphasize students' practical social skills. Further, the IEP provided for B.W. to continue receiving additional group counseling and speech therapy to assist her with these skills. In assessing whether this plan was likely to produce progress, Ms. Priestner-Werte's testimony is particularly relevant. Although she viewed Maplebrook as a superior facility, she stated that the BOCES program for the developmentally disabled was sufficiently structured and supportive to meet B.W.'s academic and social needs. It was entirely appropriate for the hearing officer to rely on this testimony [and to reject that of Dr. Liss] and to reject the contrary opinion of Dr. Liss, particularly since Ms. Priestner-Werte had had considerably more contact with both B.W. and BOCES personnel during the years the child was enrolled there.
[88] Alternatively, the Walczaks [contend that the challenged IEP is deficient because it proposed to group B.W. in a class with children whose] submit that, the specific class grouping proposed for B.W. in the 1995-96 IEP was inappropriate. They argue that no member of the CSE had knowledge of each of the children proposed for inclusion, and that the grouping was "haphazard" and "not well thought out." (Walczak Br. at 11-12 n. 7). They contend that the disabilities of the other children in the group were different from B.W.'s, and that the students' intellectual, social, and behavioral needs were [incompatible with her own.] too varied to be addressed together. The court notes that [T]he district court[, however] did not find the proposed IEP inadequate [on this ground. Neither does this court.] because of any deficiency in the class grouping. In fact, the evidence indicates that, far from haphazardly or thoughtlessly placing B.W. in a class grouping, the School District constructed the proposed class specifically around this child and her needs. Its goal was to place B.W. in a group of children with social skills better than her own in order to provide her with good role models for social interaction. When the Walczaks questioned the inclusion of some children in the group, the School District reexamined its proposal and made adjustments in an effort to accommodate the parents' concerns. While it is true that no single CSE member knew each child in the grouping, the record shows that three members, Ms. Flynn, Ms. Baines, and Ms. Napolitano, collectively had such knowledge. (Tr. 139-40, 426, 593.)
[89] The evidence also supports the conclusion of both administrative officers that the proposed grouping was reasonable and appropriate to meet the intellectual, social, and management needs of the children. The students' IQ, reading, and math levels indicate that a core group was operating at an intellectual level sufficiently comparable to B.W.'s to permit her to continue making academic progress. BOCES personnel testified that the differences in the children's raw behavioral scores did not indicate any violent or disruptive tendencies that would have made B.W.'s inclusion in the group inappropriate, and no evidence was offered to the contrary. Finally, although no child in the group other than B.W. was specifically diagnosed as having a "perseverative disability disorder," this condition appears to be, in the words of the psychiatrist who diagnosed B.W., "a global disturbance" evidenced by a wide variety of problems many of which are also characteristic of other disorders. [In sum, t]he record indicates that, whatever their specific disabilities,Page 134the students in the proposed grouping, B.W. included, were all slow learners. Each needed a highly structured, multisensory program with constant reinforcement in order to [grasp] learn the material [presented] taught. This was precisely the approach [followed] undertaken in the BOCES developmentally disabled program to teach children the life skills they would need to function independently once they left school.
[90] [This court finds that the objective evidence in this case cannot support the conclusion that a residential placement is essential to B.W.'s receipt of educational benefits. Instead, a clear preponderance of that evidence demonstrates that B.W. could make satisfactory Where, as in this case, the objective evidence indicates that a child is able to make academic and social progress in [the proposed twelve-student] a class of twelve students in a [at the BOCES] day program [for the developmentally disabled.], and where a proposed IEP accurately identifie[d] the child's ongoing needs and sets reasonable goals to address them. [Under such circumstances] any further [consideration] exploration of the relative advantages and disadvantages of a residential placement versus a day program necessarily reduces to a debate about methodology that must be resolved by trained educators, not the courts. See Board of Educ. v. Rowley, 458 U.S. at 208. The Walczaks are, of course, free to continue educating their daughter at Maplebrook if they wish. Nevertheless, because the School District has demonstrated by a clear preponderance of the evidence that their proposed 1995-96 IEP was reasonably designed to permit B.W. to receive educational benefits as required by IDEA, it cannot be ordered to reimburse the parents for expenses incurred as a result of their decision to remove their child from the BOCES program.
[91] Conclusion
[92] A preponderance of the evidence in this case clearly supports the conclusion reached by the two administrative officers: that the challenged 1995-96 IEP was adequate to provide B.W. with an appropriate public education as required by IDEA. The judgment of the district court in favor of the Walczaks is reversed and the case is remanded with directions to enter summary judgment in favor of the School District.
- The Honorable Reena Raggi of the United States District Court for the Eastern District of New York, sitting by designation. ↩
- Ritalin is a pharmaceutical used "as an integral part of a total treatment program . . . for a stabilizing effect in children with a behavioral syndrome characterized by . . . moderate-to-severe distractibility, short attention span, hyperactivity, emotional lability, and impulsivity." Physicians' Desk Reference 848 (50th ed. 1996). ↩
- In Tucker, this court held that the parents of a handicapped child could not obtain reimbursement from the school district for their unilateral placement of their child in a private school that was not "approved" by the state education commissioner. See 873 F.3d at 568. The Supreme Court subsequently ruled otherwise in Florence County Sch. Dist. Four v. Carter,510 U.S. 7(1993). ↩
- The standard set forth by the Supreme Court in School Comm. of Burlington v. Department of Educ. of Mass.,471 U.S. 359(1995) is discussed infra. ↩
- Although Dr. Liss testified that B.W.'s "startling" social improvement was primarily due to her four week stay at a residential camp in the summer of 1994, this opinion must be weighed in light of the fact that, after 1992, Dr. Liss did not evaluate B.W. again until January 1995, almost six months after the camp experience, and well into the child's second term at BOCES. ↩