In a recent decision, C.D. v. Natick Pub. Sch. Dist., No. 18-1794 (1st Cir. May 22, 2019), the First Circuit Court of Appeals grappled with the legal standards at the heart of most special education disputes – namely, the entitlement of a student with special needs to a “free appropriate public education” (FAPE) in the “least restrictive environment” (LRE). The First Circuit’s decision followed the Supreme Court’s decision in Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988 (2017), which, for the first time since 1982, squarely considered the contours of a FAPE. For an in-depth discussion about Endrew F., please see our previous post here.
Parents, school districts, and legal practitioners hoped that Endrew F. would provide much-needed clarity as to what constitutes a FAPE for a student. However, C.D. makes clear that Endrew F. may have elicited more questions than it answered. In C.D., the First Circuit addressed those questions head-on.
At the time that the dispute arose, C.D. was a rising ninth grader with cognitive and language-related deficits. C.D.’s school district of residence, Natick, proposed an individualized education program (IEP) placing C.D. in a separate, self-contained educational setting for her academic courses and in general education classes for her elective courses. C.D.’s parents rejected the IEP on the basis that the placement was inappropriate and overly restrictive, and they unilaterally placed C.D. at a private special education school. Natick proposed similar IEPs for C.D. for the following two school years, which the parents continued to reject. The parents also challenged Natick’s proposed transition plans related transition assessments as inadequate.
The parents filed for an administrative hearing before the Bureau of Special Education Appeals (BSEA), the agency charged with adjudicating special education disputes in Massachusetts, seeking reimbursement for C.D.’s private school tuition and prospective placement at the private school. After a hearing, the BSEA hearing officer found that the disputed IEPs and transition plans were appropriate, thereby providing C.D. a FAPE in the LRE, and denied all of the parents’ claims. The parents then sought review of the BSEA’s decision in federal district court.
The district court affirmed the decision of the hearing officer, but not before verifying that the BSEA: (1) had applied a FAPE standard consistent with Endrew F. (since the Supreme Court’s decision in Endrew F. had not yet been decided at the time that the BSEA had rendered its decision in C.D.’s case); and (2) had followed prior case law regarding the LRE mandate. Regarding the question of FAPE, the district court held that Endrew F. did not materially change the operative standard in the First Circuit (i.e., whether an IEP confers “a meaningful educational benefit”). By the district court’s analysis, therefore, Natick’s proposed IEPs could be said to have been “reasonably calculated to enable [C.D.] to make progress appropriate in light of [her] circumstances,” consistent with the standard announced in Endrew F. With respect to the LRE mandate, the district court concluded that the BSEA correctly considered the benefits of mainstreaming against the restrictions associated with Natick’s substantially separate placement. Ultimately, the district court agreed with the BSEA and held that Natick’s IEPs provided C.D. a FAPE in the LRE.
Challenging the legal standards applied by the district court, C.D.’s parents appealed to the First Circuit. They unsuccessfully argued that Endrew F. imposed an obligation on hearing officers and courts not only to consider whether an IEP enables a student to make “progress appropriate in light of [his or her] circumstances,” but additionally—and separately—to consider whether the IEP’s objectives are “ambitious” and “challenging.” The First Circuit rejected any notion that Endrew F. construed the FAPE standard “as two independent tests.” While recognizing that Endrew F. used terms such as “demanding,” “challenging,” and “ambitious” to help define just what it means for a student to make appropriate progress, the First Circuit unequivocally held that the Supreme Court did not create a “separate dimension of the FAPE requirement.” The First Circuit did not close the door on those sub-inquiries altogether, however, and noted that they may be applicable in certain (although undefined) contexts. In C.D.’s case, the First Circuit concluded that the district court appropriately applied the standards to the facts, upholding the district court’s decision that C.D. could have been expected to make meaningful progress pursuant to Natick’s IEPs.
The parents next argued that the district court should have applied a different standard to assess whether Natick’s IEPs were overly restrictive and in violation of the LRE mandate. Under federal and state law, the LRE mandate requires students with special needs to be educated alongside their non-disabled peers whenever possible. In support of their argument, the parents relied on a Fifth Circuit decision, Daniel R.R. v. State Bd. Of Educ., 874 F.2d 1036 (5th Cir. 1989), which had no precedential value here in the First Circuit but had been adopted by several other circuits. Under Daniel R.R.’s methodology, hearing officers and courts take a two-pronged approach to assessing LRE claims, considering: (1) “whether education in the regular classroom, with the use of supplementary aids and services can be achieved satisfactorily;” and, if not, (2) “whether the school has mainstreamed the child to the maximum extent possible.”
The First Circuit refused to adopt Daniel R.R.’s test, reasoning that it added unnecessary complexity to an already complex analysis. Instead, the First Circuit relied on its decision in Roland M. v. Concord Sch. Comm., 910 F.2d 983 (1st Cir. 1990), which only required that a hearing officer or court weigh “the benefits to be gained from mainstreaming” against the “educational improvements that could be attained in a more restrictive setting.” According to the First Circuit, any deeper inquiry by the judiciary would impinge on the deference afforded to state and local education officials in making educational placement decisions. Based on the facts in C.D., the First Circuit discerned no error in the school’s, hearing officer’s, or district court’s determinations that C.D. could be properly educated in a substantially separate setting, as outlined in Natick’s IEPs.
The C.D. case illustrates that parents seeking to challenge a school district’s IEP continue to face a steep legal battle. While Endrew F. may have changed the applicable legal standards in certain circuits, it does not appear that the case has had much, if any, impact in Massachusetts and the other states within our circuit. Parents should continue to advocate for challenging IEPs. Unfortunately, under the current interpretation of the law, there is no express guarantee that a hearing officer or court will make specific inquiry into just how challenging a student’s IEP may or may not be.