C.S. v. Johnston Sch. Dist.

C.S. and D.S., Individually and as Parents andLegal Guardians of A.S., a Minor, Plaintiffs, v. THE JOHNSTON SCHOOL DISTRICT aliasJOHNSTON PUBLIC SCHOOLS, Defendant.

C.A. No. 19-637WES

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

March 9, 2021

REPORT AND RECOMMENDATION

PATRICIA A. SULLIVAN, United States Magistrate Judge.

The Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq., requires that students with certain disabilities must be provided a "'[f]ree appropriate public education' ("FAPE") in the '[l]east restrictive environment' ("LRE") appropriate for each student." C.D. by & through M.D. v. Natick Pub. Sch. Dist., 924 F.3d 621, 624 (1st Cir. 2019), cert. denied, 140 S. Ct. 1264 (2020) (quoting 20 U.S.C. § 1412(a)(1), (5)). This case arises under IDEA; it is focused on the sixth-grade program offered by the Johnston School District ("District") to A.S., a student diagnosed with moderate autism spectrum disorder ("ASD"). Following a ten-day administrative hearing ("Hearing"), a Hearing Officer found that, with a to-be-completed individualized educational plan ("IEP"), the District's Life Skills Program at the Ferri Middle School ("Life Skills"), can provide A.S. with a FAPE in the least restrictive environment, as well as that the out-of-district placement for which A.S.'s parents ("Parents") advocated - the Sargent Rehabilitation Center ("Sargent") - does not comply with IDEA's LRE requirement because it is not a community-based school and cannot afford opportunities for in-school interaction with neurotypical peers.¹ ECF No. 8 at 4, 56 ("HO Dec.").

Questioning the Hearing Officer's determination that placement in Life Skills could meet A.S.'s socialization needs, the Parents initiated this case to challenge the Hearing Officer's factual findings. The parties' cross motions for summary judgment have been referred to me for report and recommendation. ECF Nos. 36, 42. Referred for determination is the Parents' motion to supplement the record (ECF No. 34) with additional evidence - a one-page outline of the District's pre-hearing proposal for A.S.'s sixth grade plan - that the parties had initially used to question witnesses but then had jointly withdrawn during the Hearing. For the reasons that follow, I have granted the motion to supplement by a separate text order that issued today. Finding (as the Parents concede) that the Hearing Officer made no errors of law, as well as that his factual findings are amply supported by a preponderance of the evidence and that the additional evidence is relevant, credible and persuasive, but also entirely supportive of the Hearing Officer's decision, I recommend that the Parents' motion (ECF No. 36) be denied and the District's motion (ECF No. 42) be granted.

I. Standard of Review

Because this is an IDEA action challenging the Hearing Officer's decision, the Court:

(i) shall receive the records of the administrative proceedings;

(ii) shall hear additional evidence at the request of a party; and

(iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.

20 U.S.C. § 1415(i)(2)(C). The parties seeking to overturn the Hearing Officer's decision (here, the Parents) bear the burden of proof. Roland M. v. Concord Sch. Comm., 910 F.2d 983, 991 (1st Cir. 1990).

In approaching the requirement that its decision must be based on the preponderance of the evidence, the Court must use an "intermediate standard of review," which falls between administrative deference and de novo review. Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1st Cir. 1993); see Roland M., 910 F.2d at 989 ("The court's principal function is one of involved oversight."). The Court's "independence is tempered by the requirement that it must give 'due weight' to the hearing officer's findings," which "reflects the concern that courts not substitute their own notions of educational policy for that of the state agency, which has greater expertise in the educational arena." Lt. T.B. ex rel. N.B. v. Warwick Sch. Comm., 361 F.3d 80, 83-84 (1st Cir. 2004) (quoting Roland M., 910 F.2d at 989). The Court must give "special weight" to the Hearing Officer's credibility findings to the extent that they are based on his "ha[ving] heard live testimony." Shore Reg'l High Sch. Bd. of Educ. v. P.S. ex rel. P.S., 381 F.3d 194, 199 (3d Cir. 2004). Similarly, the Court must "afford deference to findings that credit local educators over the testimony of outside experts" who have spent little time with the child. Joanna S. v. S. Kingstown Pub. Sch. Dist., C.A. No. 15-267M, 2017 WL 9324761, at *23 (D.R.I. Jan. 11, 2017), adopted, 2017 WL 1034528 (D.R.I. Mar. 17, 2017). For an IDEA case presented on the administrative record, "the parties' cross-motions for summary judgment serve as a procedural device, in which the burden of proof rests with the party seeking to overturn the Hearing Officer's Decision." S.C. by & through N.C. v. Chariho Reg'l Sch. Dist., 298 F. Supp. 3d 370, 379 (D.R.I. 2018).

In addition to the administrative record, IDEA requires the Court properly to consider "additional evidence" submitted by the parties. Doe v. Cape Elizabeth Sch. Dist., 832 F.3d 69, 83 (1st Cir. 2016) (quoting 20 U.S.C. § 1415(i)(2)(C)). In deciding whether to accept additional evidence, the trial court is left to its discretion, mindful that IDEA contemplates it as a "a hedge against injustice," Roland M., 910 F.2d at 997, but also that such evidence may not change the character of the hearing from one of review to a trial de novo, inflict unfairness on the other party or inappropriately consume scarce judicial resources. Town of Burlington v. Dep't of Educ. for Mass., 736 F.2d 773, 791 (1st Cir. 1984), aff'd sub nom. Sch. Comm. of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359 (1985). For example, if the "additional evidence" is testimony from witnesses seeking to repeat or embellish their hearing testimony or is a new witness who was not called in a willful election to leapfrog the agency proceedings, the court may exercise its discretion to refuse to allow such testimony. Roland M., 910 F.2d at 997; Burlington, 736 F.2d at 790. On the other hand, if the post-hearing evidence is a document that impacts the "persuasiveness of the hearing officer's decision," it would be error to ignore it. Doe, 832 F.3d at 84 (error to ignore affidavit with new test results proffered to bring court up to date on child's progress). When the Court exercises its discretion to accept "additional evidence," the evidence should be considered as long as it is not unfairly prejudicial to do so; if it is credible and persuasive, the Court should make an independent judgment, with less deference to the Hearing Officer who did not take the additional evidence into account. Id.; see Lessard v. Wilton-Lyndeborough Coop. Sch. Dist., Civil No. 06-cv-423-JD, 2007 WL 2156365, at *2 (D.N.H. July 24, 2007) (court accepts additional non-testimonial evidence, subject to right of district to argue that it is irrelevant, unpersuasive or unfairly prejudicial).

II. Applicable IDEA Law

IDEA offers states federal funds for the education of children with disabilities in exchange for the states' commitments to comply with IDEA's directives, including its FAPE and LRE requirements. See Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 295 (2006); C.D. by & through M.D., 924 F.3d at 624. FAPE "comprises 'special education and related services' - both 'instruction' tailored to meet a child's 'unique needs' and sufficient 'supportive services' to permit the child to benefit from that instruction." Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 748-49 (2017) (quoting 20 U.S.C. §§ 1401(9), (26), (29)). "The 'primary vehicle' for delivery of a FAPE is an IEP." D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012) (quoting Lessard, 518 F.3d at 23). An IEP is a "comprehensive plan" that is developed by the child's "IEP Team (which includes teachers, school officials, and the child's parents)" and "must be drafted in compliance with a detailed set of procedures." Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 994 (2017) (internal quotation marks omitted). The services offered in an IEP amount to a FAPE if they are "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Id. at 1001; see Johnson v. Bos. Pub. Sch., 906 F.3d 182, 196 (1st Cir. 2018) (even "slow" progress is sufficient to constitute a "meaningful educational benefit" when viewed in light of child's individual circumstances). Once the content of the IEP is finalized, the child is placed in accordance with the IEP; until the IEP is complete, no placement can be made. T.B. ex rel. N.B. v. Warwick Sch. Dep't, No. Civ.A. 01-122T, 2003 WL 22069432, at *5 (D.R.I. June 6, 2003), aff'd sub nom. Lt. T.B. ex rel. N.B. v. Warwick Sch. Comm., 361 F.3d 80 (1st Cir. 2004).

IDEA requires that disabled children must be educated in LRE, the "[l]east restrictive environment" appropriate for each child. 20 U.S.C. § 1412(a)(5). It mandates:

To the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and special classes, separate schooling, orother removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

Id. § 1412(a)(5)(A). This LRE requirement embodies the "preference" for "mainstreaming" students with disabilities in "the regular classrooms of a public school system." Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 202-03 (1982); see Endrew F. ex rel. Joseph F., 137 S. Ct. at 999 ("IDEA requires that children with disabilities...