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Johnson v. Boston Public Schools

United States Court of Appeals, First Circuit

October 12, 2018

NICOLE JOHNSON, Parent; NS, Minor, Plaintiffs, Appellants,


          Michael C. Walsh, on brief for appellants.

          Eugene L. O'Flaherty, Corporation Counsel, with whom Karen G. Castrada, Assistant Corporation Counsel, on brief for appellee Boston Public Schools.

          Maura Healey, Attorney General, with whom Bryan Bertram, Assistant Attorney General, on brief for appellee Bureau of Special Education Appeals.

          Before Lynch, Stahl, and Thompson, Circuit Judges.

          STAHL, Circuit Judge.

         Plaintiff-Appellant Nicole Johnson, acting on behalf of her minor child ("N.S."), initiated a proceeding before the Massachusetts Bureau of Special Education Appeals ("BSEA") pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq. Johnson sought, inter alia, placement for N.S. in a school outside of the Boston Public Schools ("BPS") system. The hearing officer ultimately ruled against all of Johnson's claims in a proceeding she now contends was tainted by multiple errors. On review, the district court upheld this determination and granted summary judgment to Defendants-Appellees BPS and the BSEA. We affirm.

         I. Statutory Framework and Factual Background


         We begin by describing the statutory framework of the IDEA, which provides necessary context for understanding the factual and procedural history at issue. The IDEA offers states partial federal funding for special education of children with qualifying disabilities. 20 U.S.C. § 1412(a). In exchange, states receiving IDEA funds commit to providing all of those disabled children within their jurisdiction "a free appropriate public education ('FAPE') in the least restrictive environment possible." Sebastian M. v. King Philip Reg'l Sch. Dist., 685 F.3d 79, 81 (1st Cir. 2012) (citing 20 U.S.C. § 1412(a)(1), (5)). A FAPE must include both "specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability" and "such developmental, corrective, and other supportive services . . . as may be required to assist a child with a disability to benefit from special education." 20 U.S.C. § 1401(9), (26), (29). "If a school system is unable to furnish a disabled child with a FAPE through a public school placement, it may be obliged to subsidize the child in a private program." D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012) (quotation marks and citation omitted).

         "The primary vehicle for delivery of a FAPE" is an Individualized Education Program ("IEP"). Id. (internal quotation marks and citations omitted). "An IEP must be custom-tailored to suit a particular child," Sebastian M., 685 F.3d at 84 (citation omitted), and must be "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances," Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, ___U.S.___, 137 S.Ct. 988, 999 (2017). An IEP need not, however, offer the student "an optimal or an ideal level of educational benefit[.]" Lessard v. Wilton Lyndeborough Coop. Sch. Dist. (Lessard I), 518 F.3d 18, 23-24 (1st Cir. 2008) (citations omitted).

         While the IDEA envisions a process in which parents, educators, specialists, and others collaborate to develop the IEP, it also contains dispute resolution mechanisms for parents who are dissatisfied with some element of the IEP. This includes both a formal mediation process, 20 U.S.C. § 1415(e), and, separately, an "impartial due process hearing" held before a designated state or local education agency, id. § 1415(f).[1] In Massachusetts, these processes take place before the BSEA. See 603 Mass. Code Regs. 28.08.

         Finally, parents may bring a civil action challenging the outcome of the due process hearing in either state or federal court. 20 U.S.C. § 1415(i)(2)(A); 603 Mass. Code Regs. 28.08(6).


         What follows is the factual and procedural history of the case "as supportably found by the district court," Sebastian M., 685 F.3d at 82, focusing on the facts necessary to adjudicate this appeal.[2]

         Johnson is the mother of N.S., a young male afflicted with significant deafness. Although N.S. has a cochlear implant to assist with his hearing, nonetheless his hearing remains substantially impaired. The parties do not dispute that N.S.'s disability places him within the coverage of the IDEA.

         Beginning at age three and continuing for roughly two-and-a-half years, N.S. attended the Horace Mann School for the Deaf ("Horace Mann"), a public school in the BPS system. Several evaluations conducted near the time that N.S. initially enrolled at Horace Mann concluded that N.S.'s language skills were "significantly delayed" for his age. One of these reports noted that N.S. did not use words or word approximations or demonstrate signs of understanding spoken language, and placed his language abilities "at the 20 to 21 month level." Two of the evaluations recommended instruction that incorporated both American Sign Language ("ASL")[3] and spoken communication.

         N.S.'s IEP team first met in October 2011 to devise a plan for the 2011-12 school year. The resulting plan called for N.S. to be placed in a "substantially separate classroom . . . taught by a teacher for the deaf," and for instruction using both ASL and spoken English. Pursuant to Johnson's wishes, the goal of the IEP was for N.S. "to be mainstreamed . . . .[, ] preferably in a parochial school."

         N.S.'s IEP team met again roughly one year later to update the IEP for the 2012-13 school year. See 20 U.S.C. § 1414(d)(4)(A) (requiring review and revision as needed of IEP at least annually). The IEP noted several areas in which N.S. had improved during the previous year, including his identification of a small number of letters and numbers, understanding of some "simple, one-step directions when given in sign and speech within a contextual situation," and consistent detection of various sounds. These improvements notwithstanding, the team observed that N.S.'s language continued to lag significantly behind his age. The updated IEP recommended instruction in sign-supported spoken English and in ASL at Horace Mann as well as occupational therapy.

         N.S.'s teachers and treating therapists reported that he made additional progress during the 2012-13 school year, including "spontaneously signing" some words, naming classmates and teachers in sign language, imitating words in sign, and attempting to approximate speech. Around the same time, clinicians at Boston Children's Hospital similarly observed that N.S. was beginning to express himself through signing, though he was "not yet speaking with clearly articulated speech," and scored N.S.'s receptive language skills at the two-year, two-month-old level. The Children's Hospital report urged continued use of "a combination of spoken and signed language" to facilitate N.S.'s linguistic growth.

         Despite this reported progress, Johnson informed the IEP team that she wished to limit N.S.'s instruction to sign-supported spoken English - excluding ASL instruction - as N.S.'s family did not use sign language at home. Although expressing concern about the request, in April of 2013 the IEP team modified the 2012-13 IEP to reflect Johnson's preference.

         While progress reports for the period between January and June 2013 indicate that N.S.'s ability to communicate continued to improve, his progress was slow and the IEP team recommended that N.S. repeat kindergarten. Johnson rejected this recommendation, instead requesting that N.S. be promoted and placed in a class without "peers who used ASL or who had [] disabilities" other than hearing impairment. The administrative record indicates that Horace Mann expressed concern that it "did not have a class that met [Johnson's] demands."

         In June 2013, N.S. lost his speech processor, a component of his cochlear implant that assists with processing sound, and it was not replaced for five months. Evaluations prior to, during, and after that period note N.S.'s inconsistent use of the device and stressed the importance to his linguistic development of using the processor regularly.

          These and other interactions with Johnson found in the administrative record show numerous statements by educators and clinicians reporting that N.S.'s progress was negatively affected by Johnson's intransigent opposition to the use of ASL and, later, sign-supported spoken English in N.S.'s education and at home, his inconsistent use of the cochlear processor, difficulty contacting Johnson, and her apparent lack of follow-up on appointments with and recommendations given by various hearing and speech specialists.

         N.S. underwent an unscheduled speech and language evaluation in October 2013 to address Johnson's continuing concerns that N.S.'s spoken English skills were not advancing at a sufficient rate. This evaluation included a comparison of N.S.'s receptive and expressive language abilities using both spoken English only and sign-supported spoken English. The receptive language assessments in particular found that, when using sign-supported English, "given the use of single word signs, [N.S.'s] ability to understand vocabulary words [was] similar to that of same aged, hearing peers." Using sign-supported spoken English, he also apparently demonstrated some ability to understand negatives in sentences, make inferences, understand the use of objects, and follow commands without the use of gestural cues, and to understand some higher level academic skills. In contrast, during the spoken English assessment, N.S.'s correct identification of vocabulary words was "similar to chance" and the evaluator was not able to establish a baseline for testing of other concepts. Altogether, the evaluation concluded that N.S.'s linguistic abilities continued to be "significantly delayed," with scores on the various tests administered ranging from "severely impaired to average." As a result, the evaluator ...

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