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USCA1 Opinion

December 29, 1992


UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 92-1382

CHRISTOPHER AMANN, ET AL.,


Plaintiffs, Appellants,
v.
STOW SCHOOL SYSTEM, ET AL.,
Defendants, Appellees.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
___________________
___________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
______________
___________________
Richard Amann on brief pro se.
_____________
Scott Harshbarger, Attorney General,

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

This appeal presents

Disabilities Education Act (IDEA),

seq., to the

adequacy of

program" prepared

by

learning-disabled

child who lives

court

Stow had

ruled that

formulating

the

the education

Massachusetts had given

for

It

20 U.S.C.

Stow,
in the

education

Massachusetts

for

town.1

The district

followed the required

procedures in

program,

that

the

Commonwealth

the plaintiffs all the process

program provided a "free

the child.

under the

an "individualized

Town of

in their administrative challenge


that the

a challenge,

of

due them

to the program's adequacy, and

appropriate public education"

therefore granted

summary judgment

to all

defendants.

This appeal followed.

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

Concord School Committee, 910 F.2d


_________________________

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

This requirement has

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

____________________

1The IDEA was


once known as the "Education
of the
Handicapped Act." See Section 25(b) of Public Law 102-119, 105
___
Stat. 607 (substituting "Individuals with Disabilities Education
Act" for "Education of the Handicapped Act").

needs

of the

child.

The

IEP document

contains

information

concerning the child's present levels of performance; a statement


of

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

objective criteria for

regular

measuring the

Hampton School District v. Dobrowolski, 976


_______________________
___________

F.2d 48, 50 (1st Cir. 1992).


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.

The parents are entitled to

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.
________

the decision of the administrative


either state or federal court.

Special

Education

Any party aggrieved by

hearing officer can appeal to

20 U.S.C.

1415(c).

Substantively, the IDEA itself requires courts evaluating an


IEP

to ask only whether the program is "reasonably calculated to

enable the

child to

Education
_________

v. Rowley,
______

however, merely

receive educational
458 U.S.

establishes a

176, 207

benefits."
(1982).

floor upon which

Board of
_________

Federal law,
the states

are

free

to

build.

Massachusetts

See
___

Burlington II, 736


______________

legislature has

gone

further

F.2d

at

792.

The

than Congress;

it

defines an appropriate education as one that assures the "maximum


possible development" of the child.

M.G.L. ch. 71B,

2.

II
__
Christopher Amann,

now fourteen

years old, lives

Massachusetts with

his parents, Richard

1983,

enrolled in

Christopher

school.

in Stow,

and Barbara Amann.

kindergarten

in

a Stow

In

public

It soon appeared that Christopher suffered from learning

disabilities.

This discovery

under the IDEA,


Christopher.

triggered the

Town's obligations

and in November 1983 Stow implemented an IEP for


Christopher's parents

accepted this

program, and

three subsequent annual revisions, and Christopher attended

Stow

schools through the third grade.


By
fourth

September 1987,
grade,

his

however, when

parents

had become

educational progress, or lack


Rather

than

Christopher

return
in

him

Christopher
disenchanted

of it, in the Stow


to

Carroll School,

public
a

entered the

school,

private

with

his

school system.
they

enrolled

school in

Lincoln,

Massachusetts that is devoted


disabilities.
Stow school
school.
formal

The Amanns

to teaching children with learning

say that

some representative

system recommended sending Christopher

However, the

Amanns never asked for or

of the

to a private

obtained Stow's

consent to the transfer, nor did they formally reject the

then-current IEP calling for Christopher to attend public school,


or request a hearing on its adequacy.
Christopher attended the fourth
School,

at his parents' expense.

and fifth grades at Carroll

During this time, neither Stow

nor Carroll School reviewed or revised the IEP that the Town
promulgated
course

in December

1986,

and that

in the

normal

of events, have come up for examination in December 1987.

Stow considered Christopher's enrollment


a

would,

had

unilateral, private

obligations under

placement

at Carroll School to be

that extinguished

the

Town's

the IDEA, while Carroll School does not create

IEPs for privately funded students.


This was the

status quo

until January 1989,

middle of Christopher's fifth-grade term,


letter

when, in

the

the Amanns sent Stow a

asking it to prepare an IEP for Christopher, and, "during

the pendency," to pay for his education at Carroll School.

Stow declined
but

it did

to pay Christopher's

respond to

the request

Carroll School tuition,

for an

IEP.

Christopher, convened a "team," and in March 1989


new

IEP.

It evaluated

came up with a

The Amanns neither accepted nor rejected this program.

Rather, they postponed their decision until after Christopher had


been

evaluated, at

Boston.

Stow's

In the meantime,

expense, at

Children's Hospital

Christopher finished fifth

in

grade and

entered sixth grade at Carroll School.


After the
IEP.

evaluation, in

Under its terms,

late 1989, Stow

produced another

Christopher would have

returned to Stow

and received his language arts and mathematics instruction from a

special education teacher who would also have provided him with a
daily "academic
"mainstreamed"
social studies,

support class."
Christopher

However,

into regular

science, music, art,

the

IEP would

education

have

classes for

and non-academic

subjects

such as physical education and industrial arts.

The Amanns
hearing.
A

formally rejected this proposal and

asked for a

Stow renewed the rejected IEP in April 1990.


hearing officer

Education

at the

Massachusetts Bureau

of Special

Appeals (BSEA) heard four days of testimony in May and

June

1990, and compiled

a formidable

documentary record.

Amanns were

represented by counsel.

the hearing

officer issued his decision.

no obligation, either to

At the end

of August 1990

He ruled that Stow had

pay for Christopher's private education

or to review or revise his IEP, between September 1987,


Amanns placed

The

Christopher at

Carroll School, and

when the

January 1989,

when they asked Stow for a new IEP.


The

hearing

officer

proposed after receiving


"appropriate

to

on

facilitator"

the

the Children's Hospital

IEP Stow

the
(a

document

teacher

the

designated

special education needs

However,

services
to

of

monitor

and

make

Christopher

that

the

"mainstream

in regular education classes),

clear

in

two changes to the IEP: 1)

Christopher's progress
it

had

evaluation was

educational environment."

officer ordered Stow to make

record

that

his maximum possible educational development

least restrictive

hearing

ruled

to address [Christopher's]

so as to assure
the

also

would

not

attend

support

and 2) to

regular

industrial arts classes without appropriate support to ensure his


safety
Because

when using

power tools

the proposed

IEP

officer concluded that Stow

or other

was otherwise

dangerous instruments.
adequate, the

hearing

was "not financially responsible for

[Christopher's continued] Carroll School placement."


In September 1990, Christopher

entered the seventh grade at

Carroll School.
officer's

His

ruling.

reconsideration,
inadequate

parents, meanwhile, contested


Their

claiming

because

facilitator."2

it

The

that
did

not

last

provide

motion

proposed
for

denied this

for

IEP

was

"mainstream
motion.

a "compliance hearing" to challenge

implementation of the IEP.

Mr.

Stow's

The BSEA held a compliance hearing in

1990, and found that Stow had complied with the hearing

officer's decision
IEP

filed

the

hearing officer

Amann then asked for

November

lawyer

the hearing

by making

the required modifications

and thus had "implemented"


given

School.

Finally, the Amanns asked to re-open the proceedings in


to raise

public

schools.

December
that

the

new charges
The

of lead

BSEA heard

1990, but refused to


Amanns

continued

as that was

possible

order

Christopher's

the program insofar

to the

could, and

attendance

contamination in

argument

on this

reopen the case


therefore

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.
______________________________________

1990). However, because we affirm on the merits, we need not


determine whether Christopher and Barbara Amann's appeals are
properly before us.
See Norton v. Mathews, 427 U.S. 524, 532
___ ______
_______
(1976); Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 8 n.5
_________________________
________
(1st Cir. 1991).
Similarly, we need not decide whether the
notice of appeal, which named only "Christopher Amann et al." in
its caption, but was signed by Mr. Amann, adequately identified
Mr. Amann as an appellant. See Torres v. Oakland Scavenger Co.,
___ ______
______________________
487 U.S. 312 (1988); Santos-Martinez v. Soto-Santiago, 863 F.2d
_______________
_____________
174, 176 (1st Cir. 1988) (court of appeals lacks power to hear
appeal from party not specified in notice of appeal, and "et al."
does not sufficiently identify an appellant).

charges earlier.
Even before
went

to court.

the BSEA proceedings had


Mr. Amann filed a

concluded, the Amanns

perfunctory complaint in the

United States District Court for the District of Massachusetts in


November

1990,

defendants.
complaint.
Barbara

In

but

did

March 1991,

The amended

Amann

not

immediately
Mr. Amann filed

serve

it

a lengthy

on

the

amended

complaint named Christopher, Richard and

as plaintiffs,

and the

Town

of Stow,

the Stow

School System, the Stow School Committee, and the Commonwealth of


Massachusetts (through the BSEA and

the Massachusetts Department

of Public Health) as defendants.


The

amended complaint

contained

more than

150 paragraphs

organized

into six counts.

Count One asserted a lead-poisoning

claim against the Town of Stow under the Safe Drinking Water Act,
42 U.S.C.

300j-8(a).

Count Two made a

under the

IDEA, and Count

Three asked

claim against the Town


for legal fees

Town.

Counts Four and

Five asserted the liability

School

System and

Stow School

Count Six
its

the

Committee

alleged that the Commonwealth had

from the

of the Stow

under the

IDEA.

failed to implement

regulations and ensure compliance with the IDEA.

The Amanns

asked for both monetary and injunctive relief.

In February 1992 the district court entered judgment for all


defendants

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

With respect to the IDEA

the defendants had satisfied

statute.

42

claims, the court

the Act's procedural

requirements by giving the Amanns a "fair opportunity to be heard


on

their claim,"

School

and 2)

that "the

System and modified by the

IEP developed

by

the Stow

BSEA is reasonably calculated

to enable Christopher Amann to receive educational benefits."


On

appeal, the

Amanns have

attacked both

the substantive

validity

of

procedural

the

IEP, and

compliance

the

Town's

with the

challenged the dismissal

IDEA;

and

the Commonwealth's

however,

they have

of their claim under the

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

Christopher . . . to receive educational benefits."


it appears,

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

possible development" benchmark mandated by Massachusetts law, it


was

legally incorrect.

standards enforceable in

See Roland M., 910 F.2d


___ __________
federal court insofar

at 987 (state

as they are

not

inconsistent with federal rights).


However, the

BSEA hearing officer measured

the correct, Massachusetts,


record

supports the BSEA

upholding it.

standard.
decision, we

the IEP against

Therefore, as long as the


can affirm

the judgment

See Doe v. Anrig, 728 F.2d 30, 32 (1st Cir.


___ ___
_____

(appeals court is free to

affirm on any ground supported by

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

done, and will

continue to

do, better academically at Carroll School than in the Stow public


schools.

If he can

follows logically

do better elsewhere,

that

the Stow

they reason, then

program

does not

it

assure

his

maximum possible achievement.


_______
The Amanns have, in

essence, repeated an argument

rejected in Roland M. v.
__________
noted

that

potential

"purely
--

Concord School Committee.


________________________

academic progress

is not

the

--

only indicia

format

in

handicapped

the IDEA, "[a]n


which,

'to

student

is

the

educated

academic

910 F.2d at

IEP must prescribe


maximum

we

educational benefit

implicated either by the Act or by state law."


Rather, under

There,

maximizing

of

made and

extent

992.

a pedagogical

appropriate,'

'with children

who

are

not

handicapped.'"

Id. (quoting 20 U.S.C.


___

300.550(b)(1)).

Massachusetts law states the same requirement in

different terms;
the

least

Federal

it calls

restrictive

and state

"mainstreaming."

law,

1412(5)(B); 34 C.F.R.

for "maximum possible

environment."
therefore,

M.G.L.
both

development in
ch.

dictate a

"[T]heir common objective is

71B,
policy

2.

of

the provision of

needed services promptly to learning-handicapped children through


the

free, local public school

system except where the resources

of those schools cannot appropriately meet the children's needs."


School Committee of Franklin v.
______________________________

Commissioner of Education, 17
__________________________

Mass. App. Ct. 683, 697 (1984).


Parents,

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

Roland M., 910 F.2d at 992__________

"[T]he correlative requirements of

least

private educational

academic progress, but

agencies and

enforcing the

"Mainstreaming

substantive

to make

to maximize their child's

schools,

administering

are free

environment operate

educational benefit and


in

tandem

to create

continuum of educational possibilities," id. at 993, and in order


__
"[t]o

determine a particular child's place on the continuum, the

desirability of mainstreaming must be weighed in concert with the


Act's mandate for educational improvement."
In
balance

deciding whether Stow's


between

environment,

the

Id.
___

IEP "reasonably calculated" the

academic

progress

district

court

had

and

least

to

bear

restrictive
in

mind

two

additional considerations: 1) that the Amanns bore

the burden of

proving the IEP's inadequacy, see Burlington II, 736 F.2d at 794,
___ _____________

and (2) that "the alchemy of 'reasonable calculation' necessarily


involves

choices

among

educational

policies and

theories

--

choices which courts, relatively speaking, are poorly equipped to


make."

Roland M., 910 F.2d at 992.


_________

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.

that the IEP was adequate and appropriate.

See Roland
___ ______

Its

First, there

is no question

his

school

for Christopher's

day

learning

alongside

to spend

non-handicapped

This opportunity was not available at Carroll School.

Christopher

School than

that Stow's

program would have enabled Christopher

Second, even
that

was

rationally

plan envisioned a less restrictive environment


education.

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

considerable room for the


that

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

on output skills," such as writing (but not reading) and

mathematics.
ten

inherent

educational

Children's Hospital

BSEA, and the district court,

Stow's

hours per

IEP would have given

week of

mathematics.3

The

special education

parties

agreed that

Christopher more than


in language
the special

arts and

education

teacher, Ms. Watskin, was experienced and capable in those areas.


Thus,

there would

seem to

be no

reasonable dispute

adequacy and appropriateness of the Stow

about the

program with respect to

the areas in which Christopher's disabilities were likely to have


the

greatest effect

on

his ability

to

learn and

to

perform

academically.
The
regular

Stow program would have "mainstreamed" Christopher into


classes

in

industrial arts, and


did

not

devices.

science,

amended in

instructions, the

IEP

studies,

music,

art,

physical education, but even there, the IEP

contemplate leaving
As

social

Christopher

entirely

accordance with the

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.

Watskin would have

track his
in

Had Christopher

returned to

observed his regular

development and performance, worked

those classes

attention

and

to help

ensure that

instruction,

and

he

public

classes to

with the teachers

received appropriate

provided

Christopher

with an

"academic support" class to help him, among other things, prepare


for

his

mainstream

classes and

work

on

his

needs in

those

subjects.
"Where

the

evidence

permits

two

plausible

views

of

adequacy/appropriateness, the agency's choice between them cannot


lightly be ignored."
not

be the

Roland M., 910 F.2d at


_________

only appropriate
____

selected experts, or

choice, or

the child's parents

994.

An IEP

the choice

"may

of certain

first choice, or
_____

even

the best choice," G.D. v. Westmoreland School District, 930 F.2d


____
____
_____________________________
942,

948

(1st

Cir. 1991)

provide a free appropriate


record

assures

us that

in

original),

public education.
the program

suitable balance between the


possible development."

(emphasis

offered

yet still

Our review
by Stow

of the

struck a

goals of mainstreaming and "maximum

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.

See United States v. Zannino,


___ ______________
_______

or

federal

only five

restrict our

such

discussion to

895 F.2d 1,

17 (1st Cir.

1990) ("issues adverted to in a perfunctory manner, unaccompanied

by some effort at developed argumentation, are deemed waived").


First, the Amanns

say that Stow ignored

to "prepare"

an IEP for

January 1989.

Stow

December

1986, and

agencies

to

Christopher between September

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

facility by a public agency."


___________________

Christopher's

1987 and

regulations promulgated under

for a child

"placed in

its statutory duty

only if

[the] private

the

and

the

school or

34 C.F.R.

300.341(b) (emphasis

December 1987, when the 1986 IEP

would have come up for

added).
By

its annual
He

review, Christopher

had enrolled at

Carroll School.

was not placed there by a public agency; his parents enrolled

him unilaterally, without challenging the IEP or obtaining Stow's


consent to the

transfer.

relieved

Town

the

implement" an IEP for


to create
______

of

According to regulation,
its

responsibility

"develop

Christopher; and if Stow was

an IEP for Christopher, then

had no obligation

to

their action

and

not required

it follows that the Town

to review or revise the IEP already in place.4

____________________
4

Our decision

in Burlington II is not to the contrary.


______________
There, the parents placed their child in a private school, but
they also invoked their right to an impartial due process hearing
on the adequacy of the Town's IEP. We said "that pending review
of an earlier IEP, local educational agencies should continue to
review and revise IEPs, in accordance with applicable law." 736
F.2d at 794.
The review process may take several years, and
"[w]ithout an IEP as a starting point, the court [would be] faced
with a mere hypothesis of what the Town would have proposed and
effectuated during the subsequent years." Id. The pendency of
___
review, not the placement in private school, creates the need to

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.

The "impartial due process hearings" guaranteed by 20 U.S.C.


1415(b)(2) "are to be conducted in accordance
. . ."

Burlington II, 736 F.2d at 781.


_____________

granting

of

rehearing

with state law .

In Massachusetts, "the

is discretionary

with

the

agency."

Brookline v. Commissioner of Department of Environmental Quality


_________
____________________________________________________
Engineering,
___________

387 Mass. 372, 385

not published
open

regulations defining

an agency

proceeding,

officer's initial
re-open

would

(1982).

limited

a notice

existence at the time

to

the BSEA has

a petitioner's right

decision informed

be

Although

attached

the Amanns that

"newly-discovered

of the hearing,

to the

to re-

hearing

motions to

evidence,

but which could not

in

have

been discovered with due diligence."


____________________

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.

The BSEA did


Amanns'

not abuse

rights.

Other

its discretion in

Massachusetts

similar restrictions, see


___

27 Mass.

Massachusetts

governing

statute

decisions

says that

additional

evidence

only

if it

specific
submitted

did

the

BSEA

request at issue here.


to the

district

reopen

review

"good

the

agency
to

reason" for

hear

the

14(6).

discretion

by

The affidavits

court showed

of

a matter

M.G.L. ch. 30A,

abuse its

imposed

204 (1989), and

judicial

finds

have

the

v. Massachusetts Com.
___________________

App. Ct.

court should

failure to offer it earlier.


Nor

agencies

J.C. Hillary's
______________

Against Discrimination,
______________________

so limiting

that

denying

the

that Mr. Amann


he knew

of

the

alleged lead problem no later than the "Spring of 1990."

If this

knowledge came

initial

too late

hearing in May and June,


alleged contamination

to bring

the issue

up at the

it certainly came in time to

in the

context of

either

raise the

the motion

to

reconsider or the compliance hearing.

The Amanns' three other procedural contentions share a basic


flaw.

We have said that courts "must strictly scrutinize IEPs to

ensure their procedural integrity.


tempered
procedural

by

considerations

flaws

do not

of

Strictness, however, must be


fairness

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,

seriously hampered the parents' opportunity to participate in the


formulation
benefits."

process,

or

caused

deprivation

of educational

Roland M., 910 F.2d at 994.


_________

None of

the remaining alleged procedural lapses

significant consequence.

Stow

had such a

may have violated a Massachusetts

regulation by "unilaterally" modifying the IEP to conform


hearing

officer's instructions, rather

"team" (including
C.M.R.

the parents)

28.404.5

("The

than convening

to perform

TEAM

which

the task.
completed

evaluation shall write the IEP incorporating


hearing

officer").

officer

found,

recorded

the

But any

services of

making
a

the

the full
See
___

the

school

as the hearing

modifications --

"mainstream

28

the decision of the

error was harmless,

because in

to the

facilitator" and

which

the

restriction on Christopher's use of power tools in shop classes -

Stow merely "fulfilled a ministerial

independent judgment . .

. ."

function and rendered no

Had the full

team met, it "would

have

had

beyond

no discretion

the

terms

to expand,

set by

the

amplify

hearing

or alter

officer.

the IEP"

The

Amanns'

absence, in other words, did not "seriously hamper" their ability


to participate meaningfully in the formulation process.
Similarly, the BSEA
failing to

give the

committed at worst a

Amanns a

transcript of

harmless error by
a hearing

December 7, 1990, at which the BSEA heard the Amanns'


re-open the proceedings.
apparently lost the
violated
hearing

request to

The hearing was recorded but

tape.

the IDEA, see 20


___

The lack
U.S.C.

of a

the BSEA

transcript may

1415(d)(3)

have

(party to agency

has "right to a written or electronic verbatim record of

such hearing"), but, because


writing her

reasons

the hearing officer spelled

for denying

because we have found that she

the

held on

denial,

the

BSEA's

the

request to

out in

re-open,

and

was within her discretion to make

procedural

negligence

caused

no

substantive injury.
Finally,
untimely

the

decision.

Amanns complain
A

federal

that

the

BSEA rendered

regulation,

300.512(a)(1), requires agencies like the

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.

The BSEA indisputably missed this deadline. The Amanns

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

decision caused them prejudice because the decision, dated August


31,

1990, "was

not

delivered to

already paid the tuition


the term . . . ."
complied

the

parents until

they

had

and started Christopher in Carroll

for

The implication is that the Amanns might have

with the BSEA decision and enrolled Christopher in Stow

for the

1990-91 school year,

saving themselves the

tuition, if

only the BSEA had made a decision before the school year started.

However, the record gives


Amanns

would

sending

have responded

us no reason to believe
to

Christopher back to Stow.

a timely

adverse

that the

decision by

They submitted no evidence to

that effect, and their appellate brief indicates that Christopher

remained in private school not only in 1990-91, but for the 199192 school
private

year as well.

If the Amanns enrolled Christopher in a

school in September 1991, a year after they learned that

the BSEA had confirmed

the adequacy of

Stow's IEP, then we

can

only infer that they would not have returned him to public school
in 1990, regardless

of the outcome of the BSEA

hearing.

And if

the hearing officer's late decision had no effect on their choice


of

schools

for

remediable harm.
Affirmed.
________

the 1990-91

school

term,

then

it caused

no

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