holding that a school board had not violated its child-find obligation because the student "responded well" to academic assistance from his teacher and therefore "did not need special education services"
How later courts described this case
- holding that a school board had not violated its child-find obligation because the student "responded well" to academic assistance from his teacher and therefore "did not need special education services"
- finding that failure to provide student with aide as mandated in his IEP did not constitute a material failure to implement the IEP
- where “the record evidence *682 demonstrates that [the student] made improvements throughout his sixth-grade year”
- where “the record evidence demonstrates that [the student] made improvements throughout his sixth-grade year”
Written by the judges who cited it.
The opinion
08-4632-cv
Powers v. Woodstock Bd. Of Ed.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 23 rd day of March, two thousand and ten.
5
6 PRESENT: RICHARD C. WESLEY,
7 DEBRA ANN LIVINGSTON,
8 Circuit Judges
9 RICHARD K. EATON,
10 Judge. *
11
12
13
14 A.P., a minor, by and through Craig
15 and Susan R. Powers,
16 CRAIG AND SUSAN R. POWERS,
17
18 Plaintiff-Appellants,
19
20 -v.- 08-4632-cv
21
22 WOODSTOCK BOARD OF EDUCATION,
23
24 Defendant-Appellee.
25
26
27
*
The Honorable Richard K. Eaton, of the United States Court of
International Trade, sitting by designation.
1
1 FOR APPELLANTS: CRAIG R. POWERS, pro se, Woodstock, CT.
2
3 FOR APPELLEE: LINDA L. YODER, Shipman & Goodwin LLP,
4 Hartford, CT (Peter J. Murphy, on the
5 brief.)
6
7 Appeal from the United States District Court for the
8 District of Connecticut (Kravitz, J.).
9
10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11 AND DECREED that the judgment of the district court be
12 AFFIRMED.
13 Plaintiff-appellants Craig and Susan R. Powers
14 (“Appellants”), on their own behalf and on behalf of their
15 child, A.P., appeal pro se from a judgment of the United
16 States District Court for the District of Connecticut
17 (Kravitz, J.). That judgment granted the motion of the
18 Woodstock Board of Education (“Board”) for judgment on the
19 record, denied Appellants’ cross-motion for judgment on the
20 record, and dismissed Appellants’ claim under the
21 Individuals with Disabilities in Education Act (“IDEA”), 20
22 U.S.C. § 1400, et. seq. Appellants’ claim sought
23 reimbursement for A.P.’s private school tuition at the
24 Rectory School and compensatory services, alleging, inter
25 alia, that the Board: (1) failed to meet its “Child Find”
26 obligations in February 2004; and (2) failed to provide A.P.
2
1 a free and appropriate public education (“FAPE”) during his
2 sixth-grade year by violating the terms of his
3 individualized education plan (“IEP”). 2 We assume the
4 parties’ familiarity with the facts, procedural history of
5 the case, and issues on appeal.
6 We review de novo the district court’s grant of summary
7 judgment in an IDEA case. 3 See Cerra v. Pawling Cent. Sch.
8 Dist., 427 F.3d 186, 191 (2d Cir. 2005). Although a federal
9 court reviewing administrative decisions under the IDEA must
10 base its decision “on the preponderance of the evidence,”
11 see 20 U.S.C. § 1415(i)(2)(C)(iii), it likewise “must give
12 due weight to the administrative proceedings and remain
13 mindful that the judiciary generally lacks the specialized
14 knowledge and experience necessary to resolve persistent and
15 difficult questions of educational policy.” D.F. ex rel.
2
Although this Court has specifically held that non-lawyer parents do
not have the right to represent their children in proceedings before a federal
court, see Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 284 (2d Cir.
2005), the Supreme Court has held that parents have “independent, enforceable
rights” under IDEA, which encompass the “entitlement to a free appropriate
public education for the parents’ child,” Winkelman v. Parma City Sch. Dist.,
550 U.S. 516, 533 (2007). Because the Appellants filed the complaint on their
own behalf as well as on behalf of their minor child, and the complaint
asserts independent claims for reimbursement of private school tuition and the
cost of compensatory services, they are entitled to proceed in this action pro
se. See id.
3
While the parties have moved for judgment on the administrative
record, the Federal Rules of Civil Procedure do not provide for such a
mechanism. See Muller v. First Unum Life Ins. Co., 341 F.3d 119, 124 (2d Cir.
2003). For purposes of our review, a summary judgment standard is
appropriate. See id.
3
1 N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598 (2d Cir.
2 2005) (internal quotation marks and brackets omitted).
3 “Deference is particularly appropriate when, as here, the
4 state hearing officers’ review has been thorough and
5 careful.” Walczak v. Florida Union Free Sch. Dist., 142
6 F.3d 119, 129 (2d Cir. 1998).
7 Appellants argue that the district court placed undue
8 reliance on the Hearing Officer’s rulings, and failed to
9 conduct an independent review of the facts as prescribed by
10 law. But our review of the oral argument transcript and the
11 court’s written opinion reveals that the court conducted a
12 careful and independent review of the record. The district
13 court stated that it had read the parties’ briefs, “all of
14 the exhibits,” and “most of the words of every transcript.”
15 The court noted that it had reviewed the extensive
16 transcripts from “top to bottom,” and its questioning
17 reveals that it was fully familiar with the record. It
18 carefully considered the Appellants’ claims on appeal, and
19 referred to facts outside of those found in the Hearing
20 Officer’s Final Decision and Order where necessary.
21 In addition, the district court afforded the Hearing
22 Officer’s findings appropriate deference, particularly with
4
1 respect to the testimony of A.P.’s fourth-grade teacher,
2 Mary Jane Fulco. The administrative proceedings consisted
3 of twelve days of hearings and over 200 exhibits, and the
4 parties submitted both post-hearing and reply briefs to the
5 Hearing Officer. The Hearing Officer issued a twenty-page,
6 single-spaced Final Decision and Order with fifty-three
7 findings of fact and twenty-six conclusions of law. The
8 Hearing Officer’s findings of fact were well supported and
9 reasonably presented. Accordingly, the district court was
10 correct to defer to the Hearing Officer’s determination that
11 Ms. Fulco was credible, and reject the Appellants’
12 contention that the school thwarted Ms. Fulco’s efforts to
13 refer A.P. for special education. See Walczak, 142 F.3d at
14 129.
15 The Appellants also argued in their complaint and at
16 oral argument that the Hearing Officer failed to acknowledge
17 that, with respect to the assignment of a teacher’s aide for
18 A.P. in accordance with the IEP, the school “didn’t even
19 have a TA to give him for that period of time.” But the
20 record evidence demonstrates that A.P. made improvements
21 throughout his sixth-grade year despite that fact. His
22 report card reflected As, Bs, and Cs, and showed some
5
1 improvement in language arts, math, and science. A.P.’s
2 Connecticut Mastery Test scores indicated that he was
3 performing at goal in math and reading, and was proficient
4 in writing.
5 Furthermore, although A.P. was removed before the end
6 of the marking period, A.P.’s lowest third quarter grade was
7 a “C+.” His homeroom teacher, Ms. Depasse, testified that
8 A.P. made improvements in his social and organizational
9 skills throughout the fall of his sixth-grade year. Ms.
10 Depasse testified that she made modifications to his work
11 where necessary, and saw A.P. as being as capable as “many
12 other students” in her classes. Ms. Stringer, A.P.’s social
13 studies teacher, testified that A.P.’s attention problems
14 decreased throughout the year; and Ms. Manning, his special
15 education teacher, stated that he progressed in tracking his
16 assignments and remembering to pack his materials.
17 Moreover, the school made additional efforts to help A.P.
18 attain the goals in his IEP. When Mrs. Powers informed the
19 school that the absence of an aide resulted in “a few
20 frustrating evenings” due to forgotten homework, Ms. Manning
21 volunteered to help A.P. pack his bag at the end of the day
22 to ensure that he had the necessary materials for his
6
1 homework. In light of this evidence, the Board’s actions
2 did not constitute a material failure of implementing the
3 IEP. 4 See Van Duyn ex rel. Van Duyn v. Baker Sch. Dist. 5J,
4 502 F.3d 811, 821 (9th Cir. 2007); Neosho R-V Sch. Dist. v.
5 Clark, 315 F.3d 1022, 1027 n.3 (8th Cir. 2003); Houston
6 Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir.
7 2000).
8 We have considered the Appellants’ remaining arguments
9 and find them to be without merit, and accordingly affirm
10 the district court’s grant of the Board’s motion for
11 judgment on the record for substantially the same reasons
12 set out in its thorough and well-reasoned opinion.
13 For the foregoing reasons, the judgment of the district
14 court is hereby AFFIRMED.
15
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
19
4
It should also be noted that on the first day of class, when presented
with the option, Appellants chose not to relocate A.P. to a homeroom with an
aide.
7