FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS HON. ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE.
Michael C. Walsh, on brief for appellants.
L. O'Flaherty, Corporation Counsel, with whom Karen G.
Castrada, Assistant Corporation Counsel, on brief for
appellee Boston Public Schools.
Healey, Attorney General, with whom Bryan Bertram, Assistant
Attorney General, on brief for appellee Bureau of Special
Lynch, Stahl, and Thompson, Circuit Judges.
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.
Statutory Framework and Factual Background
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).
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)
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). In Massachusetts, these processes
take place before the BSEA. See 603 Mass. Code Regs.
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).
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.
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
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") and spoken
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
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.
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.
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.
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
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.
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
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