C.D. v. Natick Public School District

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. F. Dennis Saylor, IV, U.S. District Judge]

          Benjamin J. Wish, with whom Todd & Weld, LLP, Laurie R. Martucci, and Martucci Law Associates were on brief, for appellants.

          Selene Almazan-Altobelli and Ellen Saideman on brief for Council of Parent Attorneys and Advocates, Inc., amicus curiae.

          Ira A. Burnim, Lewis Bossing, Elizabeth B. McCallum, Paul E. Poirot, William T. DeVinney, and Baker Hostetler, LLP on brief for the Judge David L. Bazelon Center for Mental Health Law, Association of University Centers on Disabilities, Disability Law Center, National Center for Learning Disabilities, National Center for Youth Law, National Disability Rights Network, and National Down Syndrome Congress, amici curiae.

          Felicia S. Vasudevan, with whom Murphy, Hesse, Toomey & Lehane, LLP was on brief, for Natick Public School District.

          Anna Rachel Dray-Siegel, Assistant Attorney General, with whom Maura Healey, Attorney General of Massachusetts, was on brief, for Bureau of Special Education Appeals.

          Michael J. Long and Long & DiPietro, LLP on brief for the Massachusetts Association of School Superintendents, amicus curiae.

          Francisco M. Negrón, Jr., Cristine M.D. Goldman, Colleen Shea, Colby Brunt, and Stoneman, Chandler & Miller, LLP on brief for National School Boards Association and Massachusetts Association of School Committees, amici curiae.

          Before Torruella, Lynch, and Kayatta, Circuit Judges.

          LYNCH, CIRCUIT JUDGE.

         The Individuals with Disabilities Education Act (IDEA) requires that students with certain disabilities be provided a "[f]ree appropriate public education" (FAPE) in the "[l]east restrictive environment" (LRE) appropriate for each student. 20 U.S.C. § 1412(a)(1), (5). Under the IDEA and Massachusetts law, the individualized education programs (IEPs) of certain disabled students must also contain postsecondary transition goals and services based on age-appropriate assessments. Id. § 1414(d)(1)(A)(i)(VIII); Mass. Gen. Laws ch. 71B, § 2.

         Appellants are C.D., a resident of Natick, Massachusetts, who qualified as a child with a disability under the IDEA, and her parents. They challenge this circuit's prior interpretations of these IDEA requirements as incomplete or as inconsistent with the IDEA and current Supreme Court case law. The parents seek reimbursement for at least three years of C.D.'s education in a specialized private school. Rejecting these challenges, we affirm the district court, which upheld a decision of the Massachusetts Bureau of Special Education Appeals (BSEA) ruling that the Natick Public School District (Natick) had complied with the FAPE, LRE, and transition requirements in proposed IEPs for C.D. See C.D. v. Natick Pub. Sch. Dist. (C.D. II), No. 15-13617-FDS, 2018 WL 3510291, at *1 (D. Mass. July 20, 2018); C.D. v. Natick Pub. Sch. Dist. (C.D. I), No. 15-13617-FDS, 2017 WL 3122654, at *1 (D. Mass. July 21, 2017).

         I.

         The IDEA offers states federal funds for the education of children with disabilities in exchange for the states' commitments to comply with the IDEA's directives, including its FAPE and LRE requirements. See Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 295 (2006).

         A FAPE "comprises 'special education and related services' -- both 'instruction' tailored to meet a child's 'unique needs' and sufficient 'supportive services' to permit the child to benefit from that instruction." Fry v. Napoleon Cmty. Sch., 137 S.Ct. 743, 748-49 (2017) (quoting 20 U.S.C. § 1401(9), (26), (29)). "The primary vehicle for delivery of a FAPE is an IEP." D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012) (internal quotation marks omitted). IEPs are "comprehensive plan[s]" that are developed by the child's "IEP Team (which includes teachers, school officials, and the child's parents)" and that "must be drafted in compliance with a detailed set of procedures." Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 988, 994 (2017) (internal quotation marks omitted). Under the Supreme Court's recent decision in Endrew F. v. Douglas County School District RE-1, 137 S.Ct. 988 (2017), the services offered in an IEP amount to a FAPE if they are "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Id. at 1001.

         The IDEA also requires states receiving federal funds to educate disabled children in the "[l]east restrictive environment" appropriate for each child. 20 U.S.C. § 1412(a)(5). The statute mandates at § 1412(a)(5)(A):

To the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

Id. The Supreme Court has characterized this LRE mandate as embodying a "preference" for "mainstreaming" students with disabilities in "the regular classrooms of a public school system." Bd. of Educ. v. Rowley, 458 U.S. 176, 202-03 (1982); see also Endrew F., 137 S.Ct. at 999 ("[T]he IDEA requires that children with disabilities receive education in the regular classroom 'whenever possible'" (quoting Rowley, 458 U.S. at 202)). But the IDEA's preference for mainstreaming "is not absolute." T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 162 (2d Cir. 2014); see also Rowley, 458 U.S. at 197 n.21 ("The Act's use of the word 'appropriate' . . . reflect[s] Congress' recognition that some settings simply are not suitable environments for . . . some handicapped children."). Instead, as we explained in Roland M. v. Concord School Committee, 910 F.2d 983 (1st Cir. 1990), "the desirability of mainstreaming must be weighed in concert with the Act's mandate for educational improvement."^[1] Id. at 993.

         The final IDEA requirement at issue here is the instruction at § 1414(d)(1)(A)(i)(VIII) that certain students' IEPs "include[] . . . appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and . . . independent living skills" along with "the transition services (including courses of study) needed to assist the child in reaching those goals." 20 U.S.C. § 1414 (d) (1) (A) (i) (VIII)(aa)-(bb). Massachusetts has made these transition requirements applicable starting at age fourteen. See Mass. Gen. Laws ch. 71B, § 2; see also 20 U.S.C. § 1414 (d) (1) (A) (i) (VIII) (making this requirement applicable "beginning not later than the first IEP to be in effect when the child is 16"). Because C.D. was fourteen or older when the IEPs at issue were proposed, these requirements applied.

         II.

         C.D. has borderline intellectual functioning and significant deficits in language ability. She attended public school in Natick through fifth grade. For middle school, she attended McAuliffe Regional Charter Public School in Framingham, Massachusetts, where she took all of her classes except math in a regular classroom setting. To assist C.D., two private tutors hired by C.D.'s parents attended C.D.'s middle school classes with her.

         The summer before C.D. entered high school, her parents worked with Natick to develop an IEP for C.D.'s ninth grade year at Natick High School. C.D.'s parents wanted C.D. to continue her education in a regular classroom setting, with the help of the same private tutors. School officials explained ...