Johnson v. Boston Public Schools , 906 F.3d 182 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 16-2122
NICOLE JOHNSON, Parent; NS, Minor,
Plaintiffs, Appellants,
v.
BOSTON PUBLIC SCHOOLS; BUREAU OF SPECIAL EDUCATION APPEALS,
Defendants, Appellees,
EILEEN NASH; LYNN GRAHAM O'BRIEN; JOAN CURRAN; LITA O'MALLEY;
JEREMIAH FORD; MARCIE GOLDOWSKI; ELIZABETH DRAKE; REBECCA HART;
TERELLE CLARK; SUE GIBBONS; JENNIFER HARRIS; DENISE ENG;
CHILDREN'S HOSPITAL; MELISSA BROWN; THOMAS CHANG, Superintendent
of Schools for the City of Boston; ANDREA ALVES-THOMPSON; ANN
MARIA ACCOMANDO,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Allison D. Burroughs, U.S. District Judge]
Before
Lynch, Stahl, and Thompson,
Circuit Judges.
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.
October 12, 2018
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
A.
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
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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
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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).
B.
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
1
The Code of Massachusetts Regulations explicitly states that
the due process hearing need not be preceded by a mediation. 603
Mass. Code Regs. 28.08(4)(b).
2The district court, in turn, relied largely on the BSEA's
Findings of Fact, noting that "[n]either party has raised any
objection to the Hearing Officer's factual findings, and both
parties have relied upon these findings in their respective
filings . . . ." Johnson v. Bos. Pub. Sch., 201 F. Supp. 3d 187,
192 n.1 (D. Mass. 2016).
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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."
3Comments by educators, clinicians, and others in the record
refer variously to ASL, "sign language," "signing," and other,
similar terms. For accuracy, we use the terms as they appear in
the record.
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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
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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.
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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
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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 recommended that
N.S. continue to receive instruction in both spoken and sign-
supported spoken English as well as speech and language therapy.
Other evaluations conducted at the same time likewise recommended
that N.S. continue to receive instruction in sign-supported spoken
English as well as spoken English.
Following the unscheduled evaluation, N.S.'s IEP team
offered to amend the IEP to provide, inter alia, additional
language therapy and other "direct services" while keeping N.S. at
Horace Mann. Johnson rejected this proposal and, separately,
proceeding pro se sought a hearing before the BSEA to challenge
the 2013-14 IEP. Johnson sought out-of-district placement in a
program focused solely on spoken English and reiterated her
position that Horace Mann had inappropriately placed N.S. in
classes with students with disabilities other than hearing loss.
BSEA initially scheduled a hearing for November 2013, but postponed
the hearing on several occasions.
In December 2013, progress reports from Horace Mann
indicated that N.S.'s language skills improved in a number of
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areas, including construction of sentences and responses in spoken
English, identification of letters, and writing. Johnson herself
acknowledged these improvements in a letter thanking N.S.'s
teacher. However, a Children's Hospital report from the same time
frame indicated that N.S.'s language skills remained extremely
limited and below age-level expectations.
Tensions between Johnson and Horace Mann expanded beyond
disagreements regarding N.S.'s educational program. Following her
February 2014 altercation with the vice principal, Johnson ceased
sending N.S. to Horace Mann and eventually withdrew him from the
school altogether. Thereafter, Johnson obtained an itinerant
student number for N.S., allowing him to continue to receive
services "consistent with his IEP."4 Johnson, 201 F. Supp. 3d at
196.
At Johnson's request, the Clarke School for Hearing and
Speech ("Clarke") performed an independent evaluation of N.S. in
March 2014. That assessment indicated that N.S.'s performance was
"consistent with a child who was just implanted" with a cochlear
device, and concluded that his "present level of language [was] .
. . insufficient to allow for adequate academic development." The
4
Given that Johnson had rejected the proposed IEP for 2013-
14, it is not clear from the record which IEP was operative at
this time. The itinerant student designation did, however, allow
N.S. to receive 11 auditory, speech, and language therapy sessions
at the Clarke School for Hearing and Speech during the summer of
2014.
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report attributed delays in linguistic skills to "a combination of
factors: his inconsistent use of his cochlear implant . . . ,
inconsistent expectations regarding mode of communication,
maladaptive behaviors and limited spoken or sign language skills."
In May 2014, N.S.'s IEP team amended its proposed plan
in response to the Clarke evaluation, increasing the therapy and
training already provided to N.S. and honoring Johnson's request
to place N.S. in a classroom in which spoken English would be the
primary language of instruction. BPS also funded auditory, speech,
and language services to compensate for those missed between N.S.'s
departure from Horace Mann and the end of the 2013-14 school year.
Johnson, dissatisfied with BPS's offer, amended her BSEA hearing
request to include a claim for compensatory services and other
monetary damages.
C.
Beginning in June 2014, Johnson and BPS attempted to
resolve their dispute regarding (1) N.S.'s educational placement;
and (2) compensatory services beyond those already agreed to by
BPS. As part of these negotiations, BPS provided Johnson with
information on programs available at Clarke and the READS
Collaborative ("READS"). READS was described by the district court
as "a private school . . . . offer[ing] an educational program for
children with hearing disabilities." Johnson, 201 F. Supp. 3d at
- 12 -
197 n.2. Johnson accepted placement at READS in early October
2014, and N.S. began attending that school shortly thereafter.
On October 16, 2014, Johnson and BPS participated in a
prehearing telephone conference with the BSEA, during which the
parties attempted to negotiate a settlement in the presence of the
hearing officer. BPS stated that it would only agree to a
settlement that resolved both the placement and compensatory
services claims, and the parties appeared to reach such an
agreement during that call. The following day, however, Johnson
informed BPS that she agreed to the placement proposal (which would
leave N.S. at READS) but not the proposed compensation settlement.
BPS promptly withdrew its offer to fund N.S.'s placement at READS.5
The BSEA hearing took place from November 17-19, 2014,
and included extensive testimony and exhibits. On January 2, 2015,
the hearing officer issued her decision, concluding that the
proposed 2013-14 and 2014-15[6] IEPs offered
[N.S.] a FAPE, and that [N.S.'s] progress
during the two and a half years in [BPS] was
effective given: the interruptions in
services caused by [Johnson], problems with
[N.S.'s] devices which caused him to spend
lengthy periods without access to sound;
5 BPS also notified Johnson that N.S.'s placement at READS
would be terminated at that time. The BSEA subsequently entered
a "stay-put" order which permitted N.S. to remain at READS pending
resolution of the hearing.
6 Despite the stay-put order, N.S.'s IEP team met in November
2014 to update the IEP for the coming school year. Johnson
rejected this IEP and challenged it as part of the then-ongoing
BSEA proceedings.
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methodological limitations which impacted
[N.S.'s] ability to acquire language; and the
lack of effective access to
language/communication in the home due to
[Johnson's] belief that hearing sound without
the ability to understand language was
sufficient for N.S. to acquire language and
learn to speak. Placement at READS, although
appropriate, was unnecessary and largely
duplicative of the program and services
offered [to N.S.] at the Horace Mann School.
Notably for purposes of this appeal, the hearing officer also
concluded that Johnson's credibility as a witness had been
"seriously compromised" by her conduct during settlement
negotiations.7 The hearing officer also noted Johnson's "admitted
bias against public schools" and related preference for parochial
schools.
Thereafter, Johnson, proceeding pro se, commenced a
civil action challenging the hearing officer's decision in the
United States District Court for the District of Massachusetts.
See 20 U.S.C. § 1415(i)(2)(A). Subsequently, on September 11,
2015, she retained counsel. Johnson both appealed the BSEA's
determination that the 2013-14 and 2014-15 IEPs provided a FAPE
and raised a number of claimed errors during the hearing itself.8
7 Specifically, the hearing officer noted Johnson's "lack of
memory and insistence that [BPS] had not explained multiple times
that its offer for [sic] a READS placement was contingent on her
acceptance of a settlement that fully disposed of all claims
against [BPS], including compensatory services."
8 Johnson also raised a number of non-IDEA claims before the
district court. On Johnson's motion, the district court allowed
her to submit an amended "bifurcated complaint" which separately
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In support of her attack on the adequacy of the IEPs, Johnson
introduced additional records, specifically N.S.'s 2015 progress
reports from READS and select medical records from 2015.
BPS moved for summary judgment on the IDEA claims, and
the BSEA subsequently joined that motion. The district court
granted the motion and affirmed the BSEA's decision. This appeal
followed.
II. Discussion
Johnson raises a number of arguments on appeal. First,
she contends that the district court erroneously concluded that
she waived her argument that N.S. should be "mainstreamed" by
failing to raise "mainstreaming" before the BSEA. Second, Johnson
claims that the hearing officer's evaluation of her credibility
included consideration of impermissible facts and evidenced bias
against her. Finally, Johnson argues that the evaluation by both
the district court and hearing officer of N.S.'s educational
progress and the sufficiency of the challenged IEPs does not
comport with the standard announced by the Supreme Court's decision
in Endrew F., 137 S. Ct. 988.9 We consider each of these claims
in turn.
addressed the IDEA and non-IDEA claims. The present appeal
pertains only to the IDEA claims. Johnson has not appealed the
non-IDEA claims, and the time to do so has passed.
9 Appellees initially argued that this court lacked
jurisdiction over this appeal, as the order appealed dismissed
only Johnson's IDEA claims and, they argued, failed to provide a
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A.
District courts considering challenges to administrative
IDEA decisions apply an intermediate standard of review that we
have called "involved oversight." D.B., 675 F.3d at 36. Under
that standard,
[a] district court reviews the administrative
record, which may be supplemented by
additional evidence from the parties, and
makes an independent ruling based on the
preponderance of the evidence. However, that
independence is tempered by the requirement
that the court give due weight to the hearing
officer's findings. As a result, a district
court's review falls somewhere between the
highly deferential clear-error standard and
the non-deferential de novo standard.
final judgment within the meaning of 28 U.S.C. § 1291. Shortly
after appellees filed their respective briefs, however, the
district court entered an order dismissing Johnson's remaining,
non-IDEA claims. While the district court did not enter a
"separate document" setting forth the judgment, as contemplated by
Federal Rule of Civil Procedure 58, appellees concede that the
second opinion constitutes a final judgment. We agree: the
district court's second order had the effect of denying Johnson
all relief and more than 150 days have passed since it was entered.
See Fed. R. Civ. P. 58(c)(2) ("For purposes of these rules,
judgment is entered . . . when the judgment is entered in the civil
docket under Rule 79(a) and the earlier of these events occurs:
(A) it is set out in a separate document; or (B) 150 days have run
from the entry in the civil docket."). The fact that the judgment
has not yet been set forth on a "separate document" does not affect
the validity of the appeal. See Fed. R. App. P. 4(a)(7)(B).
Likewise, even assuming that the initial appeal was premature
because it was not accompanied by an entry of judgment, the
subsequent entry of final judgment cures that deficiency. See
Barrett ex rel. Estate of Barrett v. United States, 462 F.3d 28,
34-36 (1st Cir. 2006) (premature appeal of dismissal of less than
all claims ripened into timely appeal after entry of judgment under
Federal Rule of Civil Procedure 58). Accordingly, we conclude we
have jurisdiction over this appeal. See Constien v. United States,
628 F.3d 1207, 1210-12 (10th Cir. 2010).
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Id. at 35–36 (internal quotation marks, alterations, and citations
omitted).
This court, however, applies a "more traditional"
standard of review to its evaluation of the district court's
decision. Id. at 36. We review the district court's
determinations of law de novo, and its findings of fact for clear
error. Doe v. Cape Elizabeth Sch. Dist., 832 F.3d 69, 76 (1st
Cir. 2016). "Where the case raises mixed questions of law and
fact, we employ a 'degree-of-deference continuum,' providing 'non-
deferential plenary review for law-dominated questions' and
'deferential review for fact-dominated questions.'"10 Id. at 76-
77 (quoting Mr. I ex rel. L.I. v. Me. Sch. Admin. Dist. No. 55,
480 F.3d 1, 10 (1st Cir. 2007)).
The majority of Johnson's challenges raise only
questions of law. Her final claim of error, however, includes
both a pure question of law, i.e. whether the district court
applied the proper standard in evaluating N.S.'s educational
progress, and a mixed question of law and fact, i.e. whether,
10Though this case comes to us following a grant of summary
judgment, "a motion for summary judgment in an IDEA case is simply
a vehicle for deciding the relevant issues, and the non-moving
party is not entitled to the usual inferences in its favor . . . .
[n]or does the presence of disputed issues of fact preclude the
award of summary judgment." Sebastian M., 685 F.3d at 84-85
(citations omitted).
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measured against the correct standard, N.S.'s progress under the
challenged IEPs was sufficient.
B.
Johnson first argues that the BSEA hearing officer
overlooked her argument that N.S. should be "mainstreamed." In
IDEA parlance, "mainstreaming" refers to the law's directive that
states must ensure that disabled students are educated in the
"least restrictive environment," and particularly that "[t]o the
maximum extent appropriate, children with disabilities . . . are
educated with children who are not disabled . . . ." 20
U.S.C. § 1412(a)(5)(A). The district court declined to entertain
this argument, concluding that Johnson did not raise it before the
BSEA and so failed to satisfy the IDEA's administrative exhaustion
requirement. Johnson, 201 F. Supp. 3d at 205-06.
While conceding that she never used the word
"mainstreaming" before the hearing officer, Johnson contends that
she implicitly "raised this point in argument and laid the factual
predicates onto the record." She emphasizes several statements in
her written "closing argument" to the BSEA, such as her statement
that "so many students with disabilities like [N.S.] are placed
unnecessarily in segregated settings like Horace Mann and [] so
few [students] were included with [] typically developing peers."
She also points to repeated arguments in that document that N.S.
should be educated with an appropriate "peer group," and asks
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rhetorically "[w]hat else would a mainstreaming argument look
like, other than a peer group argument?"
In our view, Johnson's contention that these statements
demonstrate her pursuit of a "mainstreaming" argument is belied by
context. Viewed in isolation, phrases like those quoted above
might indeed suggest that N.S. should be placed in a class with
"children who are not disabled." It is evident, however, that
this was not the thrust of Johnson's argument before the hearing
officer; rather, she sought out-of-district placement for N.S.
with other, similarly disabled students. Her "closing argument"
itself makes this clear: following the language quoted above,
Johnson urges the conclusion that the READS Collaborative
"provid[es] the 'Least Restrictive Environment'" and an
appropriate peer group of hearing-impaired students. In other
words, Johnson's use of those phrases was not directed at
encouraging the BSEA to "mainstream" N.S. into a classroom with
hearing students, but only to contrast the student body at READS
with that at Horace Mann, which she claimed included students with
disabilities other than hearing impairment. This understanding
accords with the rest of the record: while Johnson consistently
sought placement for N.S. at specialized schools for the hearing-
impaired, we find no indication that she ever sought to have him
placed with his hearing peers.
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Finding as we do that Johnson did not present a
"mainstreaming" argument to the BSEA, we have no difficulty
concluding it cannot be considered here. "IDEA requires that a
plaintiff raise or exhaust claims concerning a disabled child's
'educational situation' in the due process hearing." Rafferty v.
Cranston Pub. Sch. Comm., 315 F.3d 21, 25 (1st Cir. 2002) (citation
omitted).
C.
Johnson next levels a series of claims based on the
conduct of the hearing itself. We examine these in turn.
i.
Johnson raises a number of challenges to the hearing
officer's decision, insisting that the hearing officer
impermissibly relied on statements Johnson made at the prehearing
conference. Johnson also maintains that the hearing officer
demonstrated bias against her by stating at that hearing that
Johnson's decision to proceed was a gamble and that she should
seriously consider settlement, and that the hearing officer should
have recused herself due to that bias.
Johnson first contends that Federal Rule of Evidence 408
(rendering evidence of "Compromise Offers and Negotiations"
inadmissible) should be extended to settlement discussions before
the hearing officer. Absent an express requirement, however,
administrative hearings are not bound by the Federal Rules of
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Evidence. See Fed. Trade Comm'n v. Cement Inst., 333 U.S. 683,
705-06 (1948) ("[A]dministrative agencies . . . have never been
restricted by the rigid rules of evidence."); R & B Transp., LLC
v. U.S. Dep't of Labor, Admin. Review Bd., 618 F.3d 37, 45 (1st
Cir. 2010) (stating that "[t]he Federal Rules of Evidence do not
apply in APA proceedings" and applying rules specific to agency in
question); see also Fed. R. Evid. 101, 1101 (listing covered
proceedings). The rules governing BSEA hearings explicitly
decline to bind due process hearings to "the rules of evidence
applicable to courts[.]" Mass. Dep't of Elementary & Secondary
Educ., Hearing Rules for Special Appeals ("Hearing Rules"), Rule
X(C). The assertion that the Federal Rules of Evidence govern
BSEA proceedings is thus baseless.11
Johnson next argues that these negotiations were
protected by the IDEA's exclusion of evidence of "[d]iscussions
that occur during the mediation process[.]" 20 U.S.C.
§ 1415(e)(2)(G); see also 603 Mass. Code Regs. 28.08(4)(b) ("All
11
Johnson also attempts to back-door the Federal Rules of
Evidence into the administrative proceedings, arguing that the
district court cannot consider evidence of the settlement
negotiation in the administrative records. We find no support for
this position. Moreover, given the record here, we decline to
find that the district court erred in reviewing evidence of the
settlement discussion that was properly considered by the hearing
officer below. See, e.g., New Dynamics Found. v. United States,
70 Fed. Cl. 782, 797-98 (Fed. Cl. 2006) ("[I]f plaintiff is right,
the [agency] would be obliged to apply those same evidence rules
derivatively, lest the court strike materials that it relied upon
in denying a [claim].").
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discussions that occur during mediations are confidential and may
not be used as evidence in a hearing."). "Mediation" does not,
however, refer to any setting in which the parties discuss
settlement in front of a third party, but only negotiations that
occur before a designated mediator. See 20 U.S.C.
§ 1415(e)(2)(A)(iii) (stating that "mediation" must be "conducted
by a qualified and impartial mediator who is trained in effective
mediation techniques."); 34 C.F.R. § 300.506(b)(iii) (same).
Here, the negotiations were before a hearing officer who convened
the parties for a prehearing conference. There is no evidence
that the parties sought to designate the hearing officer as a
"mediator," and the fact that the parties discussed settlement at
that conference did not transform it into a mediation.12 Indeed,
the BSEA rules explicitly contemplate the fact that a prehearing
12
While neither the IDEA nor the BSEA rules explicitly
prohibit a hearing officer from acting as a mediator, both appear
to envision those positions as entirely separate roles. See 603
Mass. Code Regs. 28.08(3) ("Mediations and hearings shall be
conducted by impartial mediators and hearing officers who do not
have personal or professional interests that would conflict with
their objectivity in the hearing or mediation and who are employed
to conduct those proceedings."); U.S. Dep't of Educ. Office of
Special Educ. and Rehab. Services, OSEP MEMO 13-08, OSEP Memo and
Q&A on Dispute Resolution, at 6 (July 23, 2013) (noting that "[t]he
mediator, in the case of mediation, and the hearing officer, in
the case of a due process hearing, must be a qualified and
impartial individual. Aside from these similarities, there are
important differences."). We note also that the BSEA claims in
its brief that, separate from the due process hearing, Johnson and
BPS did in fact participate in a mediation held before a BSEA
mediator. The record does not appear to contain any mention of
this mediation.
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conference might include such discussions. See Hearing Rules,
Rule V(B) ("Participants in a prehearing conference must have full
authority to settle the case or have immediate access to such
authorization."). These same governing BSEA rules do not require
that the prehearing conference be confidential. Id. Rule X(C).
Simply put, because there was no mediator during the negotiations,
there is no basis to place the prehearing conference within the
coverage of Section 1415(e)(2)(G).13
Lastly, Johnson argues that consideration of these
unsworn statements demonstrates impermissible bias and prejudging
of facts by the hearing officer. We disagree. At the outset, we
do not view the credibility determination, without more, as
indicative of "actual bias or hostility" towards Johnson, see
Roland M. v. Concord Sch. Comm., 910 F.2d 983, 997-98 (1st Cir.
1990), nor do we find any evidence of such bias elsewhere in the
record. Statements by the hearing officer that moving forward
with the proceeding entails a risk, and so that settlement may be
well-advised, do not evince bias. Likewise, we find no authority
for treating an adverse credibility determination based on the
witness's conduct before a tribunal as impermissible prejudgment
13Johnson's argument regarding the Massachusetts state law
governing "mediation privilege" fails for the same reason. Mass.
Gen. Laws ch. 233 § 23C (mediator defined as individual who, inter
alia, "enters into a written agreement with the parties to assist
them in resolving their disputes").
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of facts. The hearing officer's assessment was based on Johnson's
statements in this case that were made while the hearing officer
was functioning in at least a semi-adjudicative capacity. In this
context, at least, we are hard-pressed to see how consideration of
even unsworn statements in a credibility determination constitutes
impermissible prejudging of the merits.
ii.
Johnson separately claims that the hearing officer
inappropriately considered her preference for parochial schools in
evaluating her credibility. Johnson contends that this
effectively "punished" her preference and violated her First
Amendment rights to harbor and express that opinion.
This argument is utterly without merit. Johnson's bias
against public schools was certainly relevant to the hearing
officer's determination, as there was reason to believe that
Johnson's petition was motivated by a desire to place N.S. in a
parochial school, rather than any actual inadequacies in N.S.'s
instruction at Horace Mann. Johnson mischaracterizes this issue
as one of credibility, but Johnson's credibility has nothing to do
with the ultimate issue of whether N.S. was properly provided with
a FAPE. Nor is there any evidence that Johnson was "punished" for
her preference. The hearing officer did not ultimately rule
against Johnson because of her bias against public schools, but
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because she found that the quality of N.S.'s education met the
standard for a FAPE in the least restrictive setting.
D.
In her final challenge, Johnson contends generally that
N.S.'s educational progress was not sufficient to provide him with
a FAPE. In support of this argument, she contends that the Supreme
Court's recent decision in Endrew F., 137 S. Ct. 988, raised the
bar for evaluating the adequacy of the IEPs offered to disabled
students, such that the case should be remanded to the district
court for evaluation under the new standard.
At the outset, we disagree with Johnson's premise that
Endrew F. altered the standard to be applied here. In that case,
a unanimous Court held that the standard applied below, upholding
an IEP so long as it was "calculated to confer an 'educational
benefit [that is] merely . . . more than de minimis[,]'" was
insufficient to satisfy the substantive requirements of the IDEA.
137 S. Ct. at 997 (quoting Endrew F. ex rel. Joseph F. v. Douglas
Cty. Sch. Dist. RE-1, 798 F.3d 1329, 1338 (10th Cir. 2015)) (first
two alterations in original). Instead, the Court concluded that
"[t]he IDEA demands . . . . an educational program reasonably
calculated to enable a child to make progress appropriate in light
of the child's circumstances." Endrew F., 137 S. Ct. at 1001.
In our view, the standard applied in this circuit
comports with that dictated by Endrew F. This court has announced
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that, "to comply with the IDEA, an IEP must be reasonably
calculated to confer a meaningful educational benefit," and
emphasized that this requires consideration of the individual
child's circumstances.14 D.B., 675 F.3d at 34 ("An IEP must be
'individually designed' . . . and must include, 'at a bare minimum,
the child's present level of educational attainment, the short-
and long-term goals for his or her education, objective criteria
with which to measure progress toward these goals, and the specific
services to be offered.'" (internal citations omitted)). The
district court (and the BSEA before it) relied on this standard.
See Johnson, 201 F. Supp. 3d at 191-92. Given the lack of any
evident discrepancy between the standard applied in this circuit
(and in this case) and that announced by Endrew F., we see no
reason to remand the case for further evaluation.
It remains only for us to decide whether, viewed against
the record as a whole, the district court's conclusion that the
IEPs were adequate was clear error. See Lessard I, 518 F.3d at
24. In reaching that determination, the district court canvassed
the record and noted the objective indicia of N.S.'s advancement
14
In D.B., this court cited the Second Circuit's standard for
evaluating the substance of IEPs to elucidate the requirements
imposed by this circuit. 675 F.3d at 34-35 (citing D.F. ex rel.
N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598 (2d Cir. 2005)).
We note that the Second Circuit recently upheld that standard as
consistent with Endrew F. See Mr. P v. W. Hartford Bd. of Educ.,
885 F.3d 735, 757 (2d Cir. 2018).
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as he moved from a substantial inability to communicate or
understand spoken or signed language to gradually signing,
vocalizing, and demonstrating comprehension of other linguistic
concepts. That opinion, and the preceding BSEA decision, also
noted the consistent recommendation by medical experts and
educators that N.S. receive education in both spoken and sign
language, with the hearing officer placing particular emphasis on
evaluations through this period indicating that N.S.'s
communication using sign-supported spoken English considerably
outpaced his abilities in spoken English alone. Finally, the
district court noted that N.S.'s education at READS, which Johnson
approved of, used the same methodologies urged by the challenged
IEPs and made available at Horace Mann. Based on these findings,
the district court concluded that the challenged plans were
sufficient to provide N.S. with a FAPE.
We see no clear error in this determination. The facts
in the record are certainly sufficient to support the conclusion
that N.S. in fact made meaningful educational progress under the
educational methodology proposed by the IEPs and employed in Horace
Mann. Evidence from evaluations during this period demonstrate
that N.S. made meaningful linguistic advancements, particularly
when using both sign and spoken language, and it is reasonable to
conclude that an IEP offering a similar program would allow him to
continue this development. See D.B., 675 F.3d at 38 (permissible
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to conclude that, "since [] previous IEPs had conferred meaningful
educational benefits, [a similar future] IEP was reasonably
calculated to do the same, having kept in place, and even
supplemented, the services offered by previous IEPs."). As the
district court correctly noted, this conclusion is further
supported by evidence submitted by Johnson showing that N.S.'s
linguistic skillset continued to progress at READS while using a
"similar methodological model and . . . student-teacher ratio" to
that available at Horace Mann. Johnson, 201 F. Supp. 3d at 202.
Johnson fails to point us to any evidence in the record
that contradicts the district court's finding, much less any
indication that it is unsupportable considering the record as a
whole.15 Instead, she focuses on statements by the BSEA and the
district court characterizing N.S.'s progress as "slow" and his
linguistic skills as "significantly delayed." To the extent that
Johnson implies that "slow" progress is, in and of itself,
insufficient to constitute a "meaningful educational benefit," we
cannot agree. Instead, the relationship between speed of
advancement and the educational benefit must be viewed in light of
15The only specific facts to which Johnson does point are an
apparent regression in N.S.'s language skills between January and
October 2014. She does not, however, indicate how this backsliding
demonstrates the insufficiency of any of the IEPs. In our view,
that evidence is consistent with just the opposite conclusion:
N.S.'s regression occurred during the period in which he was not
attending Horace Mann and thus not following the proposed IEP
covering that period.
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a child's individual circumstances. See Endrew F., 137 S. Ct. at
1001 ("[T]he IDEA demands . . . . an educational program reasonably
calculated to enable a child to make progress appropriate in light
of the child's circumstances."); see also Lessard I, 518 F.3d at
29 ("[W]hile the reported progress is modest by most standards, it
is reasonable in the context of [the student's] manifold
disabilities . . . ."). Like the hearing officer before it, the
district court thoroughly reviewed the record and concluded that
the speed of N.S.'s advancement under the IEP-proposed educational
methodology was appropriate considering, among other factors, his
starting point and Johnson's own resistance to educating N.S. in
ASL and spoken English. Again, we see this conclusion as entirely
supportable within the record, and so find no basis on which to
reverse the district court's conclusion.
III.
For the reasons set forth above, we affirm the district
court's grant of summary judgment.
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