Professional Documents
Culture Documents
and Pierce
O. Cray,
__________________
_______________
Assistant Attorney General, on brief for appellees Commonwealth
of Massachusetts Bureau of Special Education Appeals, Department
of Education, and Department of Public Health.
Kevin M. Hensley and Needham and Warren on brief for
__________________
___________________
appellee Town of Stow.
Regina Williams Tate and Murphy, Hesse, Toomey and Lehane on
____________________
________________________________
brief for appellees Stow School System and Stow School Committee.
__________________
__________________
Per Curiam.
___________
Individuals with
1400 et
seq., to the
adequacy of
program" prepared
by
learning-disabled
court
Stow had
ruled that
formulating
the
the education
for
It
20 U.S.C.
Stow,
in the
education
Massachusetts
for
town.1
The district
procedures in
program,
that
the
Commonwealth
the child.
under the
an "individualized
Town of
a challenge,
of
due them
therefore granted
summary judgment
to all
defendants.
We affirm.
I
_
The
IDEA
education
requires
funds to
jurisdictions
U.S.C.
both
states
provide
with a
"free appropriate
and
736
F.2d
("Burlington II").
______________
"The
development
individualized
an
federal
children in
components.
773,
is the
education
Cir. 1990).
"An
services that
has been
Cir.
to
v.
1984)
obligatory
program
(IEP)."
983, 987
instruction and
specially designed
20
Burlington
__________
788 (1st
primary safeguard
program of
their
Roland M. v.
_________
IEP is a
special
public education."
1401(a)(18).
substantive
Department of Education,
________________________
of
receive
all handicapped
1415(a); 20 U.S.C.
procedural
that
meet the
(1st
related
unique
____________________
needs
of the
child.
The
IEP document
contains
information
annual
goals
statement of
and
the
and
short term
the specific
extent
educational
to
objectives;
educational services to
which
programs; and
student's progress."
instructional
this can
be
done
be provided,
in
the
regular
measuring the
IEP
is
representative
of
teacher
and
himself.
20
least
U.S.C.
1414(a)(5);
Appeals.
and,
in
due
process
conducted
603 C.M.R.
The IEP
when
and if
by
includes
the
cases,
child's
the
child
must be reviewed at
necessary.
20
U.S.C.
they
hearing"
20 U.S.C.
that
appropriate
300.343(d).
IEP,
team
educational agency,
revised
proposed
are
1401(a)(20).
and
appropriateness.
by
local
34 C.F.R.
"impartial
hearings
the
parents,
annually
reject a
developed
do, they
on
its
can
demand
adequacy
an
and
1415(b)(2).
In Massachusetts, such
the
of
Bureau
28.400.0 et seq.
________
Special
Education
20 U.S.C.
1415(c).
enable the
child to
Education
_________
v. Rowley,
______
however, merely
receive educational
458 U.S.
establishes a
176, 207
benefits."
(1982).
Board of
_________
Federal law,
the states
are
free
to
build.
Massachusetts
See
___
legislature has
gone
further
F.2d
at
792.
The
than Congress;
it
2.
II
__
Christopher Amann,
now fourteen
Massachusetts with
1983,
enrolled in
Christopher
school.
in Stow,
kindergarten
in
a Stow
In
public
disabilities.
This discovery
triggered the
Town's obligations
accepted this
program, and
Stow
September 1987,
grade,
his
however, when
parents
had become
than
Christopher
return
in
him
Christopher
disenchanted
Carroll School,
public
a
entered the
school,
private
with
his
school system.
they
enrolled
school in
Lincoln,
The Amanns
say that
some representative
However, the
of the
to a private
obtained Stow's
nor Carroll School reviewed or revised the IEP that the Town
promulgated
course
in December
1986,
and that
in the
normal
would,
had
unilateral, private
obligations under
placement
at Carroll School to be
that extinguished
the
Town's
status quo
when, in
the
Stow declined
but
it did
to pay Christopher's
respond to
the request
for an
IEP.
IEP.
It evaluated
came up with a
evaluated, at
Boston.
Stow's
In the meantime,
expense, at
Children's Hospital
in
grade and
evaluation, in
produced another
returned to Stow
special education teacher who would also have provided him with a
daily "academic
"mainstreamed"
social studies,
support class."
Christopher
However,
into regular
the
IEP would
education
have
classes for
and non-academic
subjects
The Amanns
hearing.
A
asked for a
Education
at the
Massachusetts Bureau
of Special
June
a formidable
documentary record.
Amanns were
represented by counsel.
the hearing
no obligation, either to
At the end
of August 1990
The
Christopher at
when the
January 1989,
hearing
officer
to
on
facilitator"
the
IEP Stow
the
(a
document
teacher
the
designated
However,
services
to
of
monitor
and
make
Christopher
that
the
"mainstream
clear
in
Christopher's progress
it
had
evaluation was
educational environment."
record
that
least restrictive
hearing
ruled
to address [Christopher's]
so as to assure
the
also
would
not
attend
support
and 2) to
regular
when using
power tools
the proposed
IEP
or other
was otherwise
dangerous instruments.
adequate, the
hearing
Carroll School.
officer's
His
ruling.
reconsideration,
inadequate
claiming
because
facilitator."2
it
The
that
did
not
last
provide
motion
proposed
for
denied this
for
IEP
was
"mainstream
motion.
Mr.
Stow's
1990, and found that Stow had complied with the hearing
officer's decision
IEP
filed
the
hearing officer
November
lawyer
the hearing
by making
School.
public
schools.
December
that
the
new charges
The
of lead
BSEA heard
continued
as that was
possible
order
Christopher's
to the
could, and
attendance
contamination in
argument
on this
should,
at Carroll
the Stow
request in
because it found
have made
the
____________________
2The Amanns' lawyer bowed out after filing the motion for
reconsideration.
In all subsequent administrative and judicial
proceedings, Mr. Amann, acting "pro se," represented himself, his
wife and his son.
We generally do not allow non-lawyers to
represent litigants other than themselves, see Herrera-Venegas v.
___ _______________
Sanchez-Rivera, 681 F.2d 41, 42 (1st Cir. 1982), and the Second
______________
Circuit has applied this principle to prohibit a parent who was
not a lawyer from representing his child.
Cheung v. Youth
______
_____
Orchestra Foundation of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir.
______________________________________
charges earlier.
Even before
went
to court.
1990,
defendants.
complaint.
Barbara
In
but
did
March 1991,
The amended
Amann
not
immediately
Mr. Amann filed
serve
it
a lengthy
on
the
amended
as plaintiffs,
and the
Town
of Stow,
the Stow
amended complaint
contained
more than
150 paragraphs
organized
claim against the Town of Stow under the Safe Drinking Water Act,
42 U.S.C.
300j-8(a).
under the
Three asked
Town.
School
System and
Stow School
Count Six
its
the
Committee
from the
of the Stow
under the
IDEA.
failed to implement
The Amanns
on all
counts.
With respect
to the
Safe Drinking
Water Act claim, the court ruled that the Amanns had not provided
the notice that is a prerequisite to suit under the
U.S.C.
300j-8(b).
found 1) that
statute.
42
their claim,"
School
and 2)
that "the
IEP developed
by
the Stow
appeal, the
Amanns have
attacked both
the substantive
validity
of
procedural
the
IEP, and
compliance
the
Town's
with the
IDEA;
and
the Commonwealth's
however,
they have
not
Safe Drinking
Water Act.
III
___
The
district
court
substantively adequate
enable
was,
ruled
that Stow's
because it was
proposed
IEP
"reasonably calculated to
because it
created
a factually
applied the
by
the IDEA,
unexceptionable
federal "educational
rather than
was
the more
This
proposition, but
benefits" standard
stringent "maximum
legally incorrect.
standards enforceable in
at 987 (state
as they are
not
upholding it.
standard.
decision, we
the judgment
1984)
the
record).
The
Amanns contend
that
Stow's IEP
did
not satisfy
the
Massachusetts
requirement
development because
that
it
Christopher has
maximize
Christopher's
continue to
If he can
follows logically
do better elsewhere,
that
the Stow
program
does not
it
assure
his
rejected in Roland M. v.
__________
noted
that
potential
"purely
--
academic progress
is not
the
--
only indicia
format
in
handicapped
'to
student
is
the
educated
academic
910 F.2d at
we
educational benefit
There,
maximizing
of
made and
extent
992.
a pedagogical
appropriate,'
'with children
who
are
not
handicapped.'"
300.550(b)(1)).
different terms;
the
least
Federal
it calls
restrictive
and state
"mainstreaming."
law,
1412(5)(B); 34 C.F.R.
environment."
therefore,
M.G.L.
both
development in
ch.
dictate a
71B,
policy
2.
of
the provision of
Commissioner of Education, 17
__________________________
of course,
choices solely
the
public
liberty.
93.
and
state
may
IDEA
not be
educational criteria."
restrictive
courts
do
charged
not enjoy
ignored, even
the
with
same
to fulfill
least
private educational
agencies and
enforcing the
"Mainstreaming
substantive
to make
schools,
administering
are free
environment operate
tandem
to create
environment,
the
Id.
___
academic
progress
district
court
had
and
least
to
bear
restrictive
in
mind
two
the burden of
proving the IEP's inadequacy, see Burlington II, 736 F.2d at 794,
___ _____________
choices
among
educational
policies and
theories
--
On
into
this record,
account, we
substantial
concluded
M., 910
__
find
proof
and taking
the relevant
ample
to
from which
reason
BSEA
affirm.
much
of
children.
See Roland
___ ______
Its
First, there
is no question
his
school
for Christopher's
day
learning
alongside
to spend
non-handicapped
Christopher
School than
that Stow's
Second, even
that
was
rationally
There
could have
F.2d at 994.
the
legal principles
giving full
credit to the
enjoyed better
he would have
academic
had he returned
Amanns' allegation
progress
at Carroll
to Stow, "there
was
the
advantages
compromise
likely
to
heavily
in
the
benefits."
reported
have their
IEP
Id.
___
did
impact
not
severely
The evaluation
that Christopher's
primary
to find
from
"deficits
in domains
that
are
depend
mathematics.
ten
inherent
educational
Children's Hospital
Stow's
hours per
week of
mathematics.3
The
special education
parties
agreed that
arts and
education
there would
seem to
be no
reasonable dispute
about the
greatest effect
on
his ability
to
learn and
to
perform
academically.
The
regular
in
not
devices.
science,
amended in
instructions, the
IEP
studies,
music,
art,
contemplate leaving
As
social
Christopher
entirely
designated Ms.
to his
own
hearing officer's
Watskin as
Christopher's
____________________
3In contrast, the 1986-87 IEP that was in place when the
Amanns first enrolled Christopher at Carroll School provided for
slightly more than six hours of special education per week.
"mainstream
facilitator."
school, Ms.
track his
in
Had Christopher
returned to
those classes
attention
and
to help
ensure that
instruction,
and
he
public
classes to
received appropriate
provided
Christopher
with an
his
mainstream
classes and
work
on
his
needs in
those
subjects.
"Where
the
evidence
permits
two
plausible
views
of
be the
only appropriate
____
selected experts, or
choice, or
994.
An IEP
the choice
"may
of certain
first choice, or
_____
even
948
(1st
Cir. 1991)
assures
us that
in
original),
public education.
the program
(emphasis
offered
yet still
Our review
by Stow
of the
struck a
We need go no further.
IV
__
The Amanns claim that they can identify more than five dozen
procedural
violations
regulations,
of
but their
the
IDEA
appellate
detail, and
and
state
brief treats
issues
in any
we will
them.
or
federal
only five
restrict our
such
discussion to
895 F.2d 1,
17 (1st Cir.
to "prepare"
an IEP for
January 1989.
Stow
December
1986, and
agencies
to
had last
the
re-examine IEPs
However, federal
IDEA
say
that
implement[]" an IEP
child
was
reviewed
IDEA requires
1414(a)(5).
also
at least
public
officials
responsible
annually.
IEP
need
to
in
educational
20
U.S.C.
"develop[]
in private school
or referred
Christopher's
1987 and
for a child
"placed in
only if
[the] private
the
and
the
school or
34 C.F.R.
300.341(b) (emphasis
added).
By
its annual
He
review, Christopher
had enrolled at
Carroll School.
transfer.
relieved
Town
the
of
According to regulation,
its
responsibility
"develop
had no obligation
to
their action
and
not required
____________________
4
Our decision
Second,
process
the Amanns
by refusing
allegations
of
to
accuse
the BSEA
re-open its
lead poisoning
in
of
denying them
proceedings to
the water
supply
due
hear their
of Stow's
public
schools.
consider
the
The BSEA
refused
lead-contamination
to
issue
convene
a hearing
because,
the
to
hearing
officer said:
Any issues bearing on Stow's capacity to implement the
BSEA decision concerning the 1990-1991 IEP should have
been presented at the compliance hearing.
The parent
may not now raise new objections based on evidence that
was available to the parties at the time of the prior
compliance hearing, but which the parent chose not to
present or argue.
Conservation of administrative
resources, as well as the principles of fairness and
finality, demand closure of this matter at this level.
granting
of
rehearing
In Massachusetts, "the
is discretionary
with
the
agency."
not published
open
regulations defining
an agency
proceeding,
officer's initial
re-open
would
(1982).
limited
a notice
to
a petitioner's right
decision informed
be
Although
attached
"newly-discovered
of the hearing,
to the
to re-
hearing
motions to
evidence,
in
have
maintain and update the IEP. Because the Amanns did not complain
formally about the IEP, or invoke their right to a BSEA hearing
concerning its adequacy, there was no administrative or judicial
review pending between September 1987 and January 1989, and hence
no obligation to review and revise.
not abuse
rights.
Other
its discretion in
Massachusetts
27 Mass.
Massachusetts
governing
statute
decisions
says that
additional
evidence
only
if it
specific
submitted
did
the
BSEA
district
reopen
review
"good
the
agency
to
reason" for
hear
the
14(6).
discretion
by
The affidavits
court showed
of
a matter
abuse its
imposed
judicial
finds
have
the
v. Massachusetts Com.
___________________
App. Ct.
court should
agencies
J.C. Hillary's
______________
Against Discrimination,
______________________
so limiting
that
denying
the
of
the
If this
knowledge came
initial
too late
to bring
the issue
up at the
in the
context of
either
raise the
the motion
to
by
considerations
flaws
do not
of
automatically
and
render
practicality:
an IEP
legally
defective.
Before an
rational
basis
compromised
the
IEP
to
is set
believe
pupil's
aside, there
that
right
to
must
procedural
an
be some
inadequacies
appropriate
education,
process,
or
caused
deprivation
of educational
None of
significant consequence.
Stow
had such a
"team" (including
C.M.R.
the parents)
28.404.5
("The
than convening
to perform
TEAM
which
the task.
completed
officer").
officer
found,
recorded
the
But any
services of
making
a
the
the full
See
___
the
school
as the hearing
modifications --
"mainstream
28
because in
to the
facilitator" and
which
the
independent judgment . .
. ."
have
had
beyond
no discretion
the
terms
to expand,
set by
the
amplify
hearing
or alter
officer.
the IEP"
The
Amanns'
give the
committed at worst a
Amanns a
transcript of
harmless error by
a hearing
request to
tape.
The lack
U.S.C.
of a
the BSEA
transcript may
1415(d)(3)
have
(party to agency
reasons
for denying
the
held on
denial,
the
BSEA's
the
request to
out in
re-open,
and
procedural
negligence
caused
no
substantive injury.
Finally,
untimely
the
decision.
Amanns complain
A
federal
that
the
BSEA rendered
regulation,
34
an
C.F.R.
BSEA to reach a
final
decision
within
with respect
45 days
after
to
the "impartial
it
has received
due process
a
hearing"
request for
such
hearing.
requested
the
initial hearing
on
February
8, 1990,
and
the
hearing officer did not issue his decision until August 31, 1990,
204 days after the request was made.
The Amanns
say
that
the
BSEA's tardiness
in
issuing
1990, "was
not
delivered to
the
parents until
they
had
for
for the
tuition, if
only the BSEA had made a decision before the school year started.
would
sending
have responded
us no reason to believe
to
a timely
adverse
that the
decision by
remained in private school not only in 1990-91, but for the 199192 school
private
year as well.
the adequacy of
can
only infer that they would not have returned him to public school
in 1990, regardless
hearing.
And if
schools
for
remediable harm.
Affirmed.
________
the 1990-91
school
term,
then
it caused
no