Andover School Committee v. Bureau of Special Education Appeals of the Division of Administrative Law Appeals et al

Filing 40

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered finding as moot (18) Motion to close case before school year 2013-2014; denying (23) Motion for Summary Judgment; denying (26) Motion for Summary Judgment in case 1:12-cv-12288-DPW and thereby AFFIRMING the decision of the hearing office. On this basis the clerk shall enter judgment for the defendant in BSEA both 12-12288 and 13-10184 Associated Cases: 1:12-cv-12288-DPW, 1:13-cv-10184-DPW(Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

ANDOVER SCHOOL COMMITTEE,
Plaintiff,

v.
BUREAU OF SPECIAL EDUCATION
APPEALS OF THE DIVISION OF
ADMINISTRATIVE LAW APPEALS,
MASSACHUSETTS DEPARTMENT OF
ELEMENTARY EDUCATION, and
JOHN DOE and JANE DOE,
Defendants.

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CIVIL ACTION NO.
12-12288-DPW

CONSOLIDATED WITH
JOHN DOE,
Plaintiff,

v.
BUREAU OF SPECIAL EDUCATION
APPEALS OF THE DIVISION OF
ADMINISTRATIVE LAW APPEALS,
MASSACHUSETTS DEPARTMENT OF
ELEMENTARY EDUCATION, and
ANDOVER SCHOOL COMMITTEE,

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CIVIL ACTION NO.
13-10184-DPW

Defendants.

MEMORANDUM AND ORDER
November 21, 2013

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The Andover School Committee (“Andover”) filed this action
in this court seeking judicial review of a decision of the
Massachusetts Bureau of Special Education Appeals (“BSEA”), made
pursuant to the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. § 1400 et seq., regarding its attempt to
place a special education student (“Student”) in a private
special education school.

Student’s parents, John and Jane Doe,

(“Parents”) who oppose the out-of-district placement, filed a
separate action in Massachusetts state court seeking judicial
review of the same BSEA decision.

Andover and the BSEA removed

that case to this court and the two cases were then consolidated.
The parties have submitted cross-motions for summary judgment.
I.
A.

BACKGROUND

Statutory Framework
The IDEA was enacted “to ensure that all children with

disabilities have available to them a free appropriate public
education [“FAPE”] that emphasizes special education and related
services to meet their unique needs and prepare them for further
education, employment, and independent living.”
1400(d)(1)(A).

20 U.S.C. §

As a condition for receiving federal funding

under the IDEA, a state must offer every disabled child within
its jurisdiction a FAPE in the least restrictive environment
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possible.

See 20 U.S.C. § 1412(a)(1), (5).

If a state is unable

to provide a disabled child with a FAPE through a public school
placement, it may be obligated to subsidize the child in a
private program.

See D.B. ex rel. Elizabeth B. v. Esposito, 675

F.3d 26, 34 (1st Cir. 2012).

Massachusetts implements and

supplements the federal requirements found in the IDEA through
state law and regulation.

See Mass. Gen. Laws ch. 71B; Mass.

Code Regs. 28.01 et seq.
“The ‘primary vehicle’ for delivery of a FAPE is an IEP
[Individualized Education Program].”

D.B., 675 F.3d at 34

(quoting Lessard v. Wilton Lyndeborough Coop. Sch. Dist., 518
F.3d 18, 23 (1st Cir. 2008) (Lessard I)).

An IEP must be

“individually designed” to suit a particular child, Board of
Educ. Of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S.
176, 201 (1982), 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 those goals, and the specific services to be
offered,” Lessard I, 518 F.3d at 23 (citing 20 U.S.C.
§ 1414(d)(1)(A)).
“[T]he obligation to devise a custom-tailored IEP does not
imply that a disabled child is entitled to the maximum
educational benefit possible.”

Lessard I, 518 F.3d at 23; see
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Rowley, 458 U.S. at 198.

The Supreme Court has stated that an

IEP must offer only “some educational benefit” to a disabled
child.

Rowley, 458 U.S. at 200.

“Thus, the IDEA sets ‘modest

goals: it emphasizes an appropriate, rather than an ideal,
education; it requires an adequate, rather than an optimal,
IEP.’”

D.B., 675 F.3d at 34 (quoting Lenn v. Portland Sch.

Comm., 998 F.2d 1083, 1086 (1st Cir. 1993)).

However, “the IDEA

calls for more than a trivial educational benefit, in line with
the intent of Congress to establish a ‘federal basic floor of
meaningful, beneficial educational opportunity.’”

D.B., 675 F.3d

at 34 (quoting Town of Burlington v. Dep't of Educ. of Mass., 736
F.2d 773, 789 (1st Cir. 1984)).

To comply with the IDEA, an IEP

must be “reasonably calculated to confer a meaningful educational
benefit.”

See D.B., 675 F.3d at 34, and cases cited.

The IEP is developed by an “IEP Team,” which includes the
parents, a regular and special education teacher, a
representative of the educational agency, an individual who can
interpret evaluation results, and other individuals who have
“knowledge or special expertise regarding the child.”
§ 1414(d)(1)(B).

20 U.S.C.

“To ensure the continued adequacy of a child's

IEP, the IDEA requires that it be reevaluated annually through a
collaborative process that involves the child's parents and
educators.”

D.B., 675 F.3d at 35 (citing 20 U.S.C. § 1414(d)).
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“If this process breaks down and no consensus emerges, the
child's parents may challenge either the school system's handling
of the IEP process or the substantive adequacy of the IEP itself
by demanding an administrative due process hearing before a
designated state educational agency.”

D.B., 675 F.3d at 35

(citing 20 U.S.C. § 1415(f)(1)(A)); see Lenn, 998 F.2d at 1086.
“A public school system has essentially the same right if, for
example, it seeks to test the validity of a proposed IEP or it
wishes to challenge an existing IEP as over-accommodating.”
D.B., 675 F.3d at 35; see Schaffer ex rel. Schaffer v. Weast, 546
U.S. 49, 53 (2005); Lessard v. Wilton–Lyndeborough Coop. Sch.
Dist., 592 F.3d 267, 269 (1st Cir. 2010) (per curiam) (Lessard
II).

The burden of persuasion in the resulting hearing lies with

the party seeking relief.

See Schaffer, 546 U.S. at 62.

Both federal and state regulations govern the procedures
applicable to hearings before the educational agency, which in
Massachusetts is the BSEA.

See 20 U.S.C. § 1415; 34 C.F.R. §§

300.507-300.508; Mass. Gen. Laws ch. 71B, § 2A: 603 Mass. Code
Regs. 28.08.

Decisions of hearing officers are final and

reviewable by either a federal or state court of competent
jurisdiction.

See 20 U.S.C. § 1415(i)(1)(A), 1415(i)(2)(A).

Having exhausted the IDEA's administrative due process hearing
procedures, “[e]ither side may then appeal from the hearing
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officer's final decision to either a federal or state court of
competent jurisdiction.”

Lessard I, 518 F.3d at 24; see also 20

U.S.C. § 1415(i)(2)(A).
B.

Factual Background
1.

Student’s Background and Educational History

In 2004, when he was in the first grade, Student underwent
neuropsychological evaluation and was diagnosed with Asperger’s
Syndrome.

See Functional Behavioral Assessment, Feb. 28, 2011,

A.R. 250-54.

Student’s former school district developed a plan

pursuant to Section 504 of the Rehabilitation Act of 1973, which
called for occupational therapy, behavioral intervention, and a
1:1 aide.

Id. at 250.

During the second grade, Student had several major episodes
of physical outbursts toward staff and peers, displayed
aggressive behaviors where he tried to flee or hurt himself, and
occasionally had to be physically restrained.

Id.

The episodes

occurred when he was asked to do things he did not want to do.
Following another psychological evaluation, the former school
district developed an IEP for Student that featured a more
structured behavioral plan than the 504 plan.

Id.

Student entered the Andover school system in 2006, attending
third grade at the West Elementary School.

Although Student

became less physically aggressive as he grew older, between the
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third and fifth grade, he had several incidents of threatening
behaviors and gestures directed at staff and peers resulting in
multiple suspensions from school.
wanted to draw in his notebook.

While in class, Student only
Id.

Student enrolled at the Wood Hill Middle School in Andover
as a sixth grader in 2009.

Student had great difficulty

adjusting to academic and behavioral expectations in his sixth
grade year.
A.R. 250.

Functional Behavioral Assessment, Feb. 28, 2011,

Student was focused almost exclusively on cartooning

during class, and was extremely resistant to redirection.

Id.

Student presented with “significant behavioral issues, including
inflexibility, aggressive verbal outbursts, one verbal threat to
an adult, violent/inappropriate drawings including those of his
peers, and [nine] incidents leading to suspensions.”

Id.

Despite being “a very bright boy,” Student exhibited serial
noncompliance with instructions given to him by his teachers, and
was disengaged socially from his peers.

Testimony of Dr. Jeff

Bostic, A.R. 696-97.
School interventions included multiple IEP Team meetings,
consultations with a psychologist, and with Andover’s consulting
psychiatrist, Dr. Jeff Bostic.

Id.

conducted a three-year re-evaluation.

In November 2009, Andover
See A.R. 914.

The IEP

Team, in consultation with Dr. Bostic, recommended a forty-five
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day out-of-district placement at the North Shore Education
Consortium for assessment purposes.

Id. at 51.

The IEP Team

felt the placement was necessary because the Team “did not have
the correct information, skills or setting to reduce the current
behaviors which were excluding [Student] from his learning
environment.”
A.R. 251.

Functional Behavioral Assessment, Feb. 28, 2011,

Parents initially rejected this recommendation.

Id.

Despite ongoing behavioral support, Student had demonstrated
no significant improvement by the beginning of his seventh grade
year.

Id.

In December 2010, Parents agreed to a forty-five day

evaluation at the North Shore Consortium.

Testimony of Linda

Croteau, A.R. 797.
Student attended the North Shore Consortium in January and
February 2011.

Testimony of Linda Croteau, A.R. 797.

He was

placed in the Prep Program, which features “specific services and
supports for students who tend to be more vulnerable socially.”
STAR Assessment Report, Feb. 10, 2011, A.R. 278.

He succeeded in

the program and received a positive report at the conclusion of
his time there.

Testimony of Linda Croteau, A.R. 798.

The

report indicates that Student was “compliant and polite to both
peers and staff,” and “was able to follow all adult instructions
in an appropriate and respectful manner.”
Report, A.R. 278.

STAR Assessment

Although he “continued to be very focused and
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somewhat obsessed with doodling and cartooning,” he accepted
“without any difficulty or disrespect” that he must complete all
his assignments to the teachers’ satisfaction before he could
draw.

Id.

The content of his drawings while at North Shore

Consortium appeared non-violent and otherwise appropriate.

Id.

He did make “quite clear,” however, that he “chose[] to do really
well and do everything that [was] asked of him without resistance
with the sole goal of returning to his middle school.”

Id.

Academically, all of Student’s teachers at the North Shore
Consortium noted that he is “an extremely bright student who has
advanced abilities in all academic subjects.”
Report, A.R. 279.

STAR Assessment

The report continues that Student “quickly

picks up new information and concepts and has been able to
complete all assignments and work over the course of the 45 days
easily and without difficulty.

As a result, his teachers have

had to be prepared to have additional work for him, as he quickly
completes the assigned work.”

Id.

The report also notes that

“[s]ocially, [Student] has been observed to be quiet, withdrawn
and fairly isolative, preferring to engage in solitary activities
both within and outside the class room.”

Id. at 278.

Upon completion of his extended evaluation at the North
Shore Consortium, the staff there recommended that given
Student’s success in the “therapeutic setting” of the Prep
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Progam, Student “may benefit from a smaller academic setting,”
with a staff of “trained professionals who can understand and
effectively manage [Student’s] complex profile of
social/emotional challenges and the resultant impact they have
upon his academic progress and performance” by “provid[ing]
consistent and predictable behavioral programming throughout the
day.”

STAR Assessment Report, A.R. 282.
Following an IEP Team meeting to review the evaluations and

recommendations made by North Shore Consortium, the Team proposed
that Student either continue in the North Shore Prep Program on
an indefinite, full-time basis, or accept another out-of-district
placement at the Gifford School.

Testimony of Linda Croteau,

A.R. 798-800; 2011 IEP, A.R. 73.

The parents rejected both

offers of placement, and Student returned to Wood Hill Middle
School.

Testimony of Linda Croteau, A.R. 800.

In February 2011, Andover conducted a Functional Behavioral
Assessment (FBA), consisting of a review of past testing,
classroom observations, interviews with teachers and Parents, and
consultations with the school psychologist and Dr. Bostic
Functional Behavioral Assessment, Feb. 28, 2011, A.R. 250.

The

FBA report notes that past behavioral supports resulted in no
significant improvement in Student’s overall progress.
251.

Id. at

The report attributes an escalation in Student’s behavioral
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difficulties, namely his “rigidity, inflexibility and noncompliance” to the demands that are placed on him “academically,
socially, and behaviorally in the larger [public middle school]
environment.

Id. at 253.

More specifically, Student encounters

and must take direction from numerous adults throughout the day,
in classrooms with varying classroom structures, in a way that
does not “provide for the consistency and direct feedback that
[Student] needs in order for him to comply with adult directions,
school rules and self-monitor his behavior.”

Id.

The report

notes Student “is extremely resistant to any supports in the
regular education setting,” and that assigning a paraprofessional
to individually monitor and support him “caused [Student] a great
deal of anxiety and stress leading to paranoid thinking which in
turn exacerbated his behavioral responses.”

Id.

The FBA report recommended creating a behavior plan with
clear and consistent expectations; providing direct and immediate
feedback to Student regarding his behavior; encouraging Student
to verbalize his feelings of anxiety or frustration
appropriately; providing classroom assistant support; creating
rubrics demonstrating academic expectations; using written
contracts with Student for non-preferred topics or activities;
teaching of explicit social skills, self-regulating strategies;
facilitating frequent communication with Parents and outside
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providers.

Functional Behavioral Assessment, A.R. 254.

The

report’s final recommendation is that “[i]nstruction design
should possibly include the consideration for a more limited
environment in order to provide immediate feedback to [Student]
regarding his progress.”

Id.

Student completed seventh grade at the middle school.
526.

A.R.

A year-end IEP progress report indicates that Student was

able to follow classroom behavioral rules or guidelines in his
core academic classes sixty-five percent of the time, falling
short of the IEP’s goal of seventy-percent.

Id. at 526-27.

In

other settings, Student demonstrated compliance in only one-totwo out of five opportunities, falling short of the stated goal
of three-out-of five opportunities.

Id.

Student completed only

between forty- and fifty-percent of his assigned work.

Id.

He

used words to express his frustration or verbalize his needs in
only one-to-two out of five opportunities, falling short of the
stated goal of three-out-of five opportunities.

Id.

Student returned to the middle school for eighth grade in
the 2011-2012 school year.

In January 2012, Student was

suspended from school after writing an essay about conflicts with
teachers and plans to prove the teachers wrong, and after he was
overheard discussing “a surprise type of action to alter the
school.”

Jeff Bostic, M.D., Psychiatric and Risk Assessment,
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January 10, 2012, A.R. 205; Testimony of Martha Hyslip, A.R.
1048.

Following this incident, Student was referred to Dr.

Bostic for a “Psychiatric and Risk Assessment.”

The assessment

consisted of interviews with Student, Mother, and school staff
members.

Psychiatric and Risk Assessment, A.R. 205.

Dr. Bostic concluded that Student posed a “low risk” to harm
himself or others, but noted his concern that other students who
are properly “acculturated to the extreme inappropriateness of
using phrases about harming others . . . may not appreciate or
recognize that [Student’s] use of these terms or phrases does
necessarily mean what it would coming from another student.”
Psychiatric and Risk Assessment, A.R. 210.
According to Dr. Bostic, “[i]n simplest terms, [Student]
does not ‘trust’ adults, particularly school staff, as they
penetrate his world and indeed ‘require’ [him] to
compartmentalize his interests (e.g., comics) and engage in the
classroom instruction and tasks shared by his peers.”
209.

Id. at

Dr. Bostic’s report continues that “[p]erhaps most

importantly, [Student] is not engaging more as he matures, or
learning how to engage meaningfully with others; he is not
practicing, or moving toward, skills that will enable him to
function autonomously, whether in school/academic settings . . .
or with peers or family.”

Id.
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Dr. Bostic concluded his report by observing that,
“[a]ccordingly, [Student] is not making effective educational
progress in his current setting. . . . At this time, [Student]
would benefit from a smaller environment with more familiar
others (staff and peers) where trust could more easily occur, and
where therapeutic interventions could be infused throughout the
school experience to address his ability to produce academically
and to benefit from social interactions.”

Id. at 211.

On January 27, 2012, Andover and Parents entered into a
mediation agreement stipulating that Parents would consent to
Andover sending referral packets to the Arlington School, New
England Academy, the Dearborn School and the Gifford School to
assess Student’s suitability for placement.
Jan. 27, 2012, A.R. 215-16.

Mediation Agreement,

Parents further agreed to visit

these schools with Student, and Andover agreed to fund Student’s
placement at and provide transportation to a school that accepted
him.

Id.
The only school to accept Student was the Gifford School.

Testimony of Joyce Laundre, A.R. 1122.

Parents and Student

visited Gifford twice, but deemed it to be an inappropriate
placement.

Testimony of Father, A.R. 1199-1203. Specifically,

Parents did not feel that the academics would be challenging
enough for Student or that the peer group would be appropriate.
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Id.

Parents were also concerned that the Gifford School would

not adequately encourage or prepare Student to pursue higher
education.

Id.

In an effort to place Student at the Gifford

School over Parents’ objection, Andover filed a hearing request
with the BSEA on April 12, 2012.
Student finished eighth grade at the middle school.
Student’s year-end report card reflected mostly grades of B and
C, with a slight upward trend in his grades as well as an upward
trend in “effort” and “conduct” marks from term to term.

A.R.

510-511.
In June 2012, shortly before the end of the school year,
Parents obtained an FBA for Student from Brian Doyle, Ed.D., who
is a Board Certified Behavioral Analyst.
Doyle, A.R. 985-986.

Testimony of Brian

Dr. Boyle reviewed records, interviewed

Student, Parents, and some staff members, and observed Student at
school for approximately two hours.
512-22.

Consultation Summary, A.R.

In his report, Dr. Boyle noted that based on his review

of Student’s records, Andover had not provided Student with
ongoing behavioral support from a behavior analyst.
21.

Id. at 520-

Further, despite references by staff members to failed

behavioral plans, the School produced only one such plan for Dr.
Doyle’s review, which was primarily a set of guidelines for
Student with no prescribed interventions by teachers and other
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staff.

Id.

Dr. Doyle characterized the school-performed FBA of

February 2011 as largely anecdotal, with no data on antecedents,
specific behaviors or consequences.

Id.

In the absence of such

data, Dr. Doyle stated that it would be difficult to track
Student’s progress.

Id.

In conclusion, Dr. Doyle opined that he felt Student could
function in a public school setting because he could maintain
passing grades, posed little risk to himself or others, had
motivation to remain in public school, and had demonstrated the
ability to modify his behavior with “a clear goal, consistent
structure, and supportive response to his documented
disabilities.”

Id. at 521.

Dr. Doyle admitted that although he

had worked with a client at Andover High School before, he was
not overly familiar with the school.
A.R. 1030-31.

Testimony of Brian Doyle,

Dr. Doyle recommended a data-driven FBA “to

reevaluate the possible functions of specifically targeted
behaviors, their situational occurrence, and response to
intervention,” a behavior intervention plan based on the FBA, and
consultation with a BCBA or doctoral level professional, among
other things.

Consultation Summary, A.R. 521.

On cross-

examination at the BSEA hearing, Dr. Boyle admitted that he
allowed Parents to view a draft version of his report and suggest

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additions, some of which he did indeed incorporate in the final
version.

Testimony of Brian Doyle, A.R. 1021-25.

On August 10, 2012, Student’s IEP Team convened to consider
Dr. Doyle’s report and issued an N-1 form proposing an IEP
amendment and an outside placement.
A.R. 476-77.

N-1 Form, Aug. 10, 2012,

The proposal included retaining a BCBA, as

recommended by Dr. Boyle, to provide direct consultation to
staff, Student, and Parents for a minimum of “2-hours per week to
the school and 2-hours per week to home.”

Id. at 477.

The

proposal also included completing an updated FBA and if
necessary, the development of a behavior intervention plan
including a data collection method, as recommended by Dr. Boyle.
Id.

Finally, the proposal also included the provision to Student

of counseling services and two hours per week of after school
tutoring. Id.

The proposal made clear, however,

“that [Andover] maintains that [Student] requires a
highly structured small setting within a therapeutic
milieu.
[Student] requires a systematic, consistent
behavioral program embedded throughout the school day
which allows [Student] to process behavior within the
classroom setting and immediate access to a social
worker or counselor when he is unable to self-regulate
in the classroom.
Accordingly, the proposed services
are offered within the context of a comprehensive
therapeutic day program.”
Id.

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2.

Program Proposed by Andover

Andover proposed placing Student at the Gifford School.
Testimony of Stephen Jankauskas, A.R. 933; Closing Argument, A.R.
1244-46.

At the hearing, most of the evidence regarding Gifford

was offered through the testimony of Andover’s out-of-district
placement coordinator, Stephen Jankauskas.

Id. at 933-56.

Gifford is a co-educational private, day school located in
Weston, Massachusetts, and approved by the Massachusetts
Department of Elementary and Secondary Education in accordance
with 603 Mass. Code Regs. 28.09.
Joyce Laundre, A.R. 1137.

Id. at 935, 955; Testimony of

It features average class sizes of

eight to ten students, and follows the Massachusetts Curriculum
Framework.

Testimony of Stephen Jankauskas, A.R. 935, 955.

All

of the teachers are subject-area certified and are either
certified in special education or enrolled in master’s degree
programs for special education.

Id. at 935, 954-55.

Gifford has

a supervising psychiatrist and other clinicians on staff,
provides individual and group counseling, and is capable of
providing “in the moment” behavioral interventions.

Id. at 939-

40, 944-45;

Gifford

Testimony of Joyce Laundre, A.R. 1139.

provides a “therapeutic milieu,” in which all the staff are
trained in the specialized methodologies employed by the program
and social and emotional support is “embedded throughout the
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day”.

Id. at 948; Testimony of Joyce Laundre, A.R. 1139.

The

high school program uses a “point and level” behavior management
system under which students earn increasing degrees of freedom
based on meeting academic and behavioral expectations.

Id. at

946-48.
Mr. Jankauskas testified that in his opinion, based on his
experience with Gifford and observation of its high school
program, Gifford would be an appropriate placement for Student.
Id. at 952.

In his experience, Gifford serves students on the

autism spectrum, including students similar in profile to
Student, as well as students with other types of emotional issues
who respond positively to a highly structured therapeutic milieu.
Id. at 953-54.

The students there are of average to above

average cognitive ability.

Id. at 954.

At the time of the

hearing, Andover had at least one student with high-functioning
autism or Asperger’s and behavioral concerns placed at Gifford.
Id. at 945; Testimony of Joyce Laundre, A.R. 1136.

Although some

of the students at Gifford have behavioral issues, Mr. Jankauskas
testified that “acting out [type] behavior is not the norm in the
high school program at all.”
3.

Id. at 947.

Program Proposed by Parents

Parents seek to have Student attend Andover High School
(AHS) with the support of a behavior intervention plan as
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recommended by Dr. Boyle and proposed in the August 10, 2012 N-1
form.

Closing Argument, A.R. 1246-1248.

They believe he is

motivated and capable of success in the public school setting, as
demonstrated by his largely satisfactory report card which
demonstrated some upward trending.
A.R. 1181-84.

Id.; Testimony of Father,

Parents introduced into evidence a number of

“Student Observation/Reflection Form[s]” that they obtained from
Andover during discovery; the forms contain scores from 0-4 based
on Student’s behavior in each class period of the day; Student
received mostly 3s, with some 2s and some 4s.

A.R. 497-509.1

Parents offered as evidence Student’s MCAS scores for grades six
and seven, which indicated that Student was “advanced” in both
English Language Arts and Mathematics in grade six, and
“proficient” in English Language Arts and “advanced” in
Mathematics in grade seven, although the reports did show that
Student’s “growth percentile” – a measure of how he scored in a
given year relative to students who received the same score as
him in the previous year – diminished significantly from grade
six to grade seven.

A.R. 644-45.

1

Parents also offered Student’s

These forms were apparently filled out by teaching assistants
assigned to observed Student’s behavior over the course of the
day; the forms also contain written comments detailing any
behavior that the assistants considered to be the least bit
inappropriate. See A.R. 497-509; Testimony of Martha Hyslip,
A.R. 1038-46. Student felt these people were spying on him.
Testimony of Linda Croteau, A.R. 872-74; 906-07.
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Secondary School Admission Test (SSAT) score report from grade
eight, which indicated that Student scored in the seventy-eighth
percentile of test takers.

A.R. 646.

Additionally, parents offered evidence that, contrary to the
testimony of Andover’s witnesses, Student has friends and has
participated in extracurricular group actives, such as the school
band, rowing club, as well as attended a summer camp without
incident.

Testimony of Father, A.R. 1182, 1227-32.

Parents

attempted to demonstrate on cross-examination of several of
Andover’s witnesses, and through testimony of the Father, that
student was a talented artist and that in many instances the
school was taking Student’s drawings out of context in an effort
to find objectionable content.
895-96;

Testimony of Linda Croteau, A.R.

Testimony of Father, A.R. 1209-1211; Student Drawing,

A.R. 403; See generally, Student Drawings, A.R. 303-430.
Based on their visit to Gifford and conversations with staff
there, Parents do not believe that Gifford will challenge Student
academically, or adequately prepare student to pursue higher
education.

Testimony of Father, A.R. 1201-1203.

Father also

testified that based upon his visit to the school, students at
Gifford “look like – not like normal kids, my impression.
Learning disability or other disability.
impression.”

Id.
-21-

That’s the first

According to John Norton, the program advisor for special
education at AHS, AHS has an enrollment of approximately 1800
students including approximately 250 students on IEPs.
of John Norton, A.R. 1155.
education programs.

Testimony

AHS offers a variety of special

Id. at 1156.

After attending the August 10,

2012 IEP Team meeting and reviewing the various evaluations of
Student, Mr. Norton formed the opinion that Student requires
“continuous therapeutic intervention and on-the-spot, sort of inthe-moment processing as well.”

Id. at 1159.

According to Mr.

Norton, AHS does not have the ability to provide this type of
academic setting.

Id.

Given his lack of progress in the

smaller, highly-collaborative and team-oriented middle school
environment, Mr. Norton has “grave concerns” about Student’s
ability to succeed in a traditional high school environment where
he would need to take instruction from five different teachers
from different department who have little or no regular
communication or coordination.

Id. at 1164-65.

Further, with

approximately thirty students per class, classroom teachers do
not have the ability to cater to a single student who needs near
constant behavioral interventions.

Id.

AHS simply lacks the

ability to provide the consistent, systematic intervention that
Student requires.

Id. at 1169.

-22-

Joyce Laundre, Director of Special Education at the middle
school, testified that having so-called “one-to-one” support in
the public high school setting is more restrictive than an outof-district placement because of the stigma attached to having an
in-classroom assistant assigned to one particular student.
1140.

A.R.

Student’s social issues, which have not significantly

improved in middle school, would become even more challenging in
the high school environment.

Id. at 1163-64.

Although there are

other students with Asperger’s Syndrome who have succeeded at
AHS, they differ from Student in that they are willing to accept
the support offered to them in the regular education setting.
Id. at 1163, 1174.
C.

BSEA Proceedings
Andover requested a hearing before the BSEA on April 12,

2012, after Parents rejected an out-of-district placement.
hearing was held on August 15, 16 and 17, 2012.

A

Parents appeared

pro se, and after evidence was presented on both sides and oral
closing arguments were heard, the Hearing Officer issued a
decision on September 11, 2012.

Bureau of Special Education

Appeals, Decision No. 12-7315 (Sept. 11, 2012) [hereinafter BSEA
Decision].
Based on the evidence presented, the Hearing Officer held
that A) Student would not receive FAPE at AHS, but further held
-23-

that B) Andover had not met its burden of proving that Gifford
would provide Student with FAPE.

BSEA Decision at 9-10.

As a

result, the Hearing Officer ordered that “[w]ithin thirty
calendar days from the date of [her] Decision, the Andover Public
Schools shall locate or create a placement designed for highly
intelligent students with Asperger’s Syndrome or similar
disorders, and shall fund Student’s placement in such program.”
Id. at 10.
The Hearing Officer’s holding that Student would not receive
FAPE at AHS was based on “[t]he uncontroverted evidence on the
record . . . that Student requires a small, structured setting
capable of explicitly and consistently teaching him [the skills
he lacks], during the course of the school day,” combined with
the uncontroverted evidence that AHS could not adequately serve
Student’s needs.

Id. at 9.

While the Hearing Officer credited

the Father’s testimony that Student “has friends and participates
in activities outside of school,” she stated that she:
also must credit the unanimous testimony of [Andover’s]
witnesses to the effect that Student has been consistently
isolated from interactions with peers and adults in a school
setting, has tremendous difficulty when another person, such
as a teacher, requires him to operate outside of his own
sphere of thinking, and does not appear to have made much
progress in this arena.
Id.

The hearing officer noted that, while Dr. Doyle testified

that Student “could probably be educated within a public high
-24-

school, he also testified that he is not familiar with AHS, and,
further, that Student would benefit from a level of in-the-moment
intervention that Andover acknowledges that AHS cannot provide.”
Id. at 9-10.
With respect to her holding that Andover had not met its
burden of proving that Gifford was an appropriate placement for
Student, the Hearing Officer noted that the only evidence
regarding Gifford’s appropriateness came from Mr. Jankauskas, and
that no one from Gifford testified at the hearing.

Id. at 10.

Further, she found no evidence in the record concerning the
experience of the school or staff in dealing with students with a
profile similar to that of Student, and no evidence of the
appropriateness of Student’s peer group at Gifford.

Id.

She

specifically noted that “no witnesses from Gifford testified at
the hearing.”

Id. n.5.
II.

STANDARD OF REVIEW

The IDEA provides that, when reviewing a hearing officer's
decision, a court “(i) shall receive the records of the
administrative proceedings; (ii) shall hear additional evidence
at the request of a party; and (iii) basing its decision on the
preponderance of the evidence, shall grant such relief as the
court determines is appropriate.”

-25-

20 U.S.C. § 1415(i)(2)(C).

The First Circuit recently articulated the standard that
applies to a federal district court’s review of a hearing
officer’s decision:
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 clearerror standard and the non-deferential de novo standard. We
have characterized this intermediate level of review as one
of involved oversight.
D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 35-36 (1st
Cir. 2012) (citations, internal quotation marks, and brackets
omitted).
“The application of these standards in the context of a
motion for summary judgment adds a layer of complexity.”
Sebastian M. v. King Philip Regional School Dist., 685 F.3d 79,
84 (1st Cir. 2012); see also Ross v. Framingham Sch. Comm., 44 F.
Supp. 2d 104, 112–13 (D. Mass. 1999).

“As in other

administrative appeals, 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.”

Sebastian M., 685 F.3d at 84-85; see Lillbask ex

rel. Mauclaire v. Conn. Dep't of Educ., 397 F.3d 77, 83 n.3 (2d
Cir. 2005); Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d

-26-

884, 892 (9th Cir. 1995) (“Though the parties may call the
procedure a ‘motion for summary judgment’. . . the procedure is
in substance an appeal from an administrative determination, not
a summary judgment.”).

“Nor does the presence of disputed issues

of fact preclude the award of summary judgment.”

See Sebastian

M., 685 F.3d at 85 (citing Capistrano, 59 F.3d at 891–92).
The First Circuit has observed that “judicial review in IDEA
cases differs substantially from judicial review of other agency
actions, in which courts generally are confined to the
administrative record and are held to a highly deferential
standard of review.”

Sebastian M., 685 F.3d at 85 (quoting Ojai

Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1471 (9th Cir. 1993).
“[T]he district court's authority under [the IDEA] to supplement
the record below with new evidence, as well as Congress's call
for a decision based on the ‘preponderance of the evidence,’
plainly suggest less deference than is conventional [in other
administrative appeals].”
(D.C. Cir. 1988).

Kerkam v. McKenzie, 862 F.2d 884, 887

The role of the district court is “essentially

[to] conduct a bench trial based on a stipulated record,” while
at the same time giving due deference to the findings of the
administrative hearing officer.

Sebastian M., 685 F.3d at 85

(quoting Ojai, 4 F.3d at 1472).

However, the IDEA's provision

for a somewhat less deferential standard of review “is by no
-27-

means an invitation to the courts to substitute their own notions
of sound educational policy for those of the school authorities
which they review.”

Board of Educ. of Hendrick Hudson Cent. Sch.

Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 206 (1982).
III.

ANALYSIS

Andover appeals the Hearing Officer’s determination that it
did not meet its burden of proving that Student would receive
FAPE at Gifford, and challenges the authority of the Hearing
Officer to order a school district to create or locate a
placement for “highly intelligent” students.

Parents cross-

appeal the determination that Student would not receive FAPE at
Andover High School, and raise additional arguments arising from
factual developments that occurred after the close of evidence in
the BSEA hearing.

The BSEA opposes both appeals.

For the

reasons explained herein, I will affirm the Hearing Officer’s
decision in large part.
A.

Ability of Andover High School is Unable to Offer
Student FAPE
1.

Hearing Officer’s Findings

Parents challenge the Hearing Officer’s determination that
Student would not receive FAPE in a regular education setting at
Andover High School with appropriate behavioral supports as
recommended by Dr. Boyle.

They accuse Andover of possessing

-28-

ulterior motives for seeking to remove Student from Andover
Public Schools, and contend that through its efforts to obtain an
out-of-district placement for Student, Andover is denying Student
his right under IDEA to receive FAPE in the “least restrictive
environment” possible.

Parents argue that the Hearing Officer

failed to discern contradictions in Andover’s evidence, failed to
credit their evidence properly, and rendered a decision against
the weight of the evidence.

While I acknowledge that this is a

close case, after thoroughly evaluating the record, I decline to
disturb the Hearing Officer’s determination.
Although a somewhat obvious point, I note - as the First
Circuit has recently observed - that “children of different
abilities are capable of different achievements, and ‘[o]nly by
considering an individual child's capabilities and potentialities
may a court determine whether an educational benefit provided to
that child allows for meaningful advancement.’”

D.B., 675 F.3d

at 36 (quoting Deal v. Hamilton Cnty. Bd. of Educ., 392 F.3d 840,
864 (6th Cir. 2004)).

In order to determine whether an IEP

confers a “meaningful educational benefit” on a particular
student, it “must be gauged in relation to the child's
potential.”

D.B., 675 F.3d at 36 (quoting Polk v. Central

Susquehanna Intermediate Unit 16, 853 F.2d 171, 185 (3d Cir.
1988)); see Shore Reg’l High Sch. Bd. of Educ. v. P.S. ex rel.
-29-

P.S., 381 F.3d 194, 198 (3d Cir. 2004) (“The IEP must be
reasonably calculated to enable the child to receive meaningful
educational benefits in light of the student’s intellectual
potential.”).

“In most cases,” at least where the child’s

potential is determinable to some degree of certainty, “an
assessment of a child’s potential will be a useful tool for
evaluating the adequacy of his or her IEP.”

D.B., 675 F.3d at

36.
As the First Circuit has also observed, albeit in a slightly
different context, “[d]evelopmental disability takes many forms.”
D.B., 675 F.3d at 36.

This case is somewhat unusual for several

reasons, one of which is that the student’s disability that makes
him eligible for special education is primarily social/behavioral
and not intellectual.

Accordingly, it is particularly important

in this case to assess whether a particular IEP (namely, Parents’
proposal for Student to attend AHS) is “reasonably calculated to
provide ‘effective results’ and ‘demonstrable improvement’ in the
various ‘education and personal skills identified as special
needs.’”

Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1090 (1st

Cir. 1993) (emphasis added) (quoting Town of Burlington v. Dep't
of Educ. of Mass., 736 F.2d 773, 789 (1st Cir. 1984).

An IEP

“‘must target all of a child’s special needs,’ whether they be
academic, physical, emotional, or social.
-30-

Lenn, 998 F.2d at 1089

(quoting Burlington, 736 F.2d at 788) (emphasis added).
“Education” is broadly defined under the IDEA, and accordingly,
“purely academic progress . . . is not the only indi[cium] of
educational benefit.”

Roland M. v. Concord Sch. Comm., 910 F.2d

983, 992 (1st Cir. 1990); see Timothy W. v. Rochester, N.H. Sch.
Dist., 875 F.2d 954, 970 (1st Cir. 1989).
While the Supreme Court has stated that an IEP that places a
student “in the regular classrooms of the public education system
. . . should be reasonably calculated to enable the child to
achieve passing marks and advance from grade to grade,” Rowley,
458 U.S. at 204, there is no reason to interpret this statement
as restricting the evaluation of the benefit conferred by an IEP
to a strictly academic metric.

See Lenn, 998 F.2d at 1086

(noting “IEP which places a pupil in a regular public school
program will ordinarily pass academic muster” as long as it meets
the aforementioned condition) (emphasis added).
In light of the foregoing, the Hearing Officer was entitled
to conclude that despite Student’s arguably satisfactory academic
performance, as evidenced primarily by his seventh grade report
card, and his above average scholastic aptitude, as evidenced by
his standardized test scores, Student was nonetheless unlikely or
unable to receive FAPE in the regular classroom environment at
Andover High School.

The weight of the evidence demonstrated
-31-

that Student suffered from severe emotional, social and
behavioral impairments that were inhibiting his development, that
Student had shown no substantial improvement over the course of
his time at Wood Hill Middle School, and that Andover High School
was incapable of providing the environment that Student required.
The Hearing Officer’s decision describes in detail the
testimony and evidence presented by both Andover and Parents
regarding Student’s educational progress.

Contrary to Parents’

argument, Andover presented substantial evidence regarding
Student’s deficits and lack of progress in addressing those
deficits throughout his middle school years.

Staff members from

the middle school testified to Student’s consistent rejection of
their efforts to modify his behavior and general lack of progress
in his most significant areas of need.

Dr. Bostic testified that

his main concern was Student’s isolation and lack of social
development, and that Student would only begin to make progress
in this area in a small, therapeutic program where student can
develop trust of both his educators and peers.

In addition to

Dr. Bostic’s evaluation, two additional outside evaluations – the
STAR Assessment Report from the North Shore Consortium and the
Neuropsychological Evaluation Report by Dr. Abrams concluded that
Student would be best served by a highly structured, highly
predictable environment where he could be provided “in the
-32-

moment” behavioral interventions.

The Hearing Officer was

entitled to attach such weight to these expert opinions as she
deemed appropriate.

Sebastian M., 685 F.3d at 86 (“[t]he

valuation of expert testimony is precisely the sort of firstinstance administrative determination that is entitled to
judicial deference by the district court.”).

From my separate

vantage point, this assessment of weights was well founded and,
indeed, not meaningfully disputed.
Notably, the opinion of Parents’ own expert, Dr. Boyle,
was not entirely inconsistent with the opinion of Dr. Bostic and
the recommendations made in the other expert reports; Dr. Boyle
recognized that Student demonstrated the most success when
provided with “a clear goal, consistent structure, and supportive
response to his documented disabilities.”

Although Dr. Boyle

expressed his belief that Student’s needs could be met in a
public high school setting, he admitted that he was not
intimately familiar with Andover High School or its ability to
provide the kind of support that he believed Student requires.
The record further supports the Hearing Officer’s finding
that the evidence was uncontroverted as to the inability of
Andover High School to serve Student’s needs.

Andover High

School’s program director for special education, John Norton,
testified that given the size of the student population, the
-33-

number of students in each individual class, and the number of
different teachers from separate departments with whom Student
would have to interact over the course of the day, it simply was
not possible to provide the kind of structure, consistency and
in-the-moment interventions that Student requires.

The Director

of Student Services, Joyce Laundre, testified that having an
instructional assistant accompany Student to class at the High
School would result in stigmatization, and would likely
exacerbate Student’s social difficulties.
In their memoranda to this court, Parents advance their view
that Andover has essentially conspired to remove Student from the
Andover Public Schools Student through the device of an
illegitimate, punitive out-of-district placement.

In support of

this argument, Parents’ contend that the 45-day placement at
North Shore Consortium was contrived to make it easier for
Andover to argue later that Student would benefit from a
permanent (or at least indefinite) placement in an out-of
district program.

Parents question the legitimacy of the

Functional Behavioral Assessment, which the school conducted
immediately following Student’s return from North Shore
Consortium.

Parents also point to the “Student

Observation/Reflection Form[s],” which they argue demonstrate
that Student behaved acceptably during the spring of his eighth
-34-

grade year, contrary to Andover’s argument that Student has made
little or no progress.
Parents’ argument that Andover was simply fed up with
Student and engaged in an institutional vendetta against him, is,
in essence, an attack on the credibility of Andover’s witnesses.
Credibility determinations, however, are the province of the
factfinder, which in this case is the Hearing Officer.

Sudbury

Public Schools v. Massachusetts Dep’t of Elem. and Secondary
Educ., 762 F. Supp. 2d 254, 262 (D. Mass. 2010); see also Wytrwal
v. Saco Sch. Bd., 70 F.3d 165, 171 (1st Cir. 1995) (stating, in a
case not involving the IDEA, that the “choice” to credit
testimony “is within the discretion of the factfinder”).

In the

absence of some compelling evidence as to why the testimony of
certain of Andover’s witnesses should be disregarded, I have no
reason to recalibrate the assessment of the credibility of those
witnesses or disagree with the Hearing Officer’s credibility
determinations.

Based upon my review of the record, I accept

that a certain amount of animosity developed between Student and
the special education Staff at the middle school, which only
exacerbated Student’s difficulties.

However, this does not

change the fact that over three years of middle school, Student
was unable to regulate his behavior to a degree where he could
function at an acceptable level in the regular education
-35-

environment.

I find by a preponderance of the evidence that

Student was being denied FAPE and the Andover High School could
not provide it for this student.
B.

The Gifford School Has Not Been Shown To Be Able To Offer
Student FAPE
Andover argues that the Hearing Officer’s determination that

it did not meet its burden of proving that the Gifford School
represents an appropriate placement for Student is legally
erroneous and not supported by the evidence in the record.

I

disagree.
Andover claims it sustained its burden because “it is
undisputed that the Gifford School is a private [special
education] school approved by the Massachusetts Department of
Elementary and Secondary Education” (“DESE”) that meets all of
DESE’s requirements for educational staffing, and that it
provided evidence about Student’s would-be peer group at Gifford.
The fact that Gifford is an approved special education school is
plainly insufficient, by itself, to prove that Gifford would
offer Student a “meaningful educational benefit,” or at least an
educational benefit that was any more meaningful than what
student would have received at Andover High School.

As Stephen

Jankauskas indicated in his testimony, several of the other
schools to which he sent referrals on Student’s behalf, all of

-36-

which were presumably certified special education schools,
responded that they did not feel Student would be a good fit for
their programs.

This is not entirely surprising given that the

disability that makes Student eligible for special education is
social and behavioral in nature, as opposed to other more
traditional learning disabilities.
To be sure, Andover offered evidence of Gifford’s
suitability for Student.

However, all of that evidence came in

the form of testimony of two employees of Andover Public Schools,
Mr. Jankauskas and Joyce Laundre, who had only a general
familiarity with Gifford.

Mr. Jankauskas testified to the small

class size, the availability of clinical staff, and the school’s
use of a “point-and-level” behavior management system.

He and

Ms. Laundre testified, in general terms, to the “therapeutic
milieu” offered at Gifford.

Mr. Jankauskas also testified that

Gifford educates students who are on the autism spectrum
including students with similar profiles to Student, and that he
felt, based on his one-time observation of two ninth grade
classrooms at the school, that the peer group would be
appropriate for Student.

One would reasonably assume, as the

Hearing Officer apparently did, that superior sources of
information regarding Gifford’s suitability for Student would be
readily available – the Hearing Officer was within her discretion
-37-

to conclude that Andover had not met its burden of persuasion on
this issue.

The Hearing Officer correctly noted and was

evidently concerned that no evidence had been presented regarding
the “experience of the school or its staff in dealing with
Student’s with Asperger’s Syndrome or similar issues,” and I will
not disturb her determination on this basis.

See Lessard I, 518

F.3d at 24 (“Judges are not trained pedagogues, and they must
accord deference to the state agency’s application of its
specialized knowledge.”).
Further, I reject Andover’s argument that the Hearing
Officer applied an incorrect legal standard in concluding that
Andover had not met its burden of persuasion.

Andover

essentially argues that because the IDEA requires only that an
IEP provide “some educational benefit” to a disabled child,
Rowley, 458 U.S. at 200, and because the IDEA sets “modest goals
[in that] it emphasizes an appropriate rather than an ideal,
education [and] requires an adequate, rather than an optimal,
IEP,” Lenn, 998 F.2d 1086, the evidence in the record of
Gifford’s appropriateness is more than adequate because it is
obvious that Gifford will provide “some” educational benefit to
Student.

Measured in those terms, however, one could just as

easily argue that Andover High School would provide some
educational benefit.

As already discussed, however, IDEA
-38-

requires that an IEP confer a meaningful educational benefit,
where meaningfulness is measured, at least where possible,
against a specific student’s potential.
36.

See D.B., 675 F.3d at

In light of — as is eminently clear from the record —

Student’s unique profile, the Hearing Officer was entitled to
require a greater demonstration of meaningfulness than what
Andover provided.2
Finally, Andover objects to the portion of the Hearing
Officer’s decision that orders it to “locate or create a
placement designed for highly intelligent students with
Asperger’s Syndrome and similar disorders.”

It argues that “high

intelligence” is not a disability under either 603 Mass. Code
Regs. 28.02(9) (listing eligible disabilities) or 20 U.S.C. §
1401(3)(A) (defining “child with a disability”), and therefore a
school district cannot be required to factor a student’s status
as “highly intelligent,” “intellectually gifted” or “academically
advanced” into a student’s specialized instruction.

Andover

further argues, that as a practical matter, no such programs
exist.
Although I agree with Andover’s legal argument in the
abstract, I agree with the position advanced by the BSEA in its
2

I note that although it could have, Andover did not request
this court hear additional evidence pursuant to 20 U.S.C. §
1415(i)(2)(B), of Gifford’s appropriateness.
-39-

brief that the Hearing Officer’s order should be construed simply
to require Andover to create or locate a program designed for
students with “similar or comparable profiles as Student.”

I

find by a fair preponderance of the evidence that Andover did not
meet its burden to show that Gifford was an appropriate
placement; consequently, as the hearing officer concluded, it
remains obligated to find and fund a placement that will provide
this student with a fair and appropriate public education.
C.

Additional Evidence Offered by Parents
Contrary to their official position at the BSEA hearing,

Parents now argue that Student “does not need IEP or ‘therapeutic
environment’ at all.”

In support of this argument, Parents have

attached to their memoranda copies of Student’s report cards from
the private (regular education) parochial school where Student is
currently enrolled at Parents’ expense.

The report cards

indicate that Student has received grades in the mid- to highnineties (out of one-hundred) in all of his ninth grade courses,
as well as positive teacher comments.

Parents, who are pro se,

did not previously indicate that they intended to offer
additional evidence pursuant to 20 U.S.C. § 1415(i)(2)(C) and
while this evidence is suggestive of new avenues to explore in
the ongoing search for a fair and appropriate public education

-40-

for the Student, it is not relevant to the BSEA decision at issue
before me now.
IV.

CONCLUSION

For the reasons set forth above, I deny the respective
motions for summary judgment of the Andover School Committee
(#23) and the Parents (#26) and thereby AFFIRM the decision of
the Hearing Officer in this matter.
I am compelled to observe, however, that all parties may
wish to leaven their seemingly intractable and rigid formal
positions with a bit of common sense and practicality as they go
forward.

To be sure, Andover has demonstrated for now it cannot

provide FAPE for the student at Andover High School; yet it has
been willing to fund a very expensive alternative at The Gifford
School, which for now has not been demonstrated to provide the
Student with FAPE either.

For their part, the Parents and the

Student seem to be intent on demonstrating, as much for perceived
dignitary reasons as for educational ones, that the Student
should not be excluded from Andover High School.

Meanwhile, the

Student appears from the limited information provided to be
flourishing in his current parochial school.
Putting to one side for the moment the opinions of
professional educators and behavioralists about appropriate
protocols to address the issues confronted by the Student and
-41-

noting George Bernard Shaw’s mordant observation that “[a]ll
professions are conspiracies against the laity,”3 it might be
appropriate for all parties to return to core principles and
explore whether the Student’s current, less expensive, placement
may be providing - the trend of professional thinking in this
area to the contrary notwithstanding - a fair and appropriate
education for the Student which consequently can properly be
publicly funded.

If the parties were to agree to a more cost

effective means to provide FAPE, the goals of the parties might
be secured without further proceedings.

I, of course, express no

view on this matter since the evidence has not been fully
developed.

But I suggest the parties consider whether further

battle over the purity of their principles should be undertaken
at the expense of an available alternative that meets the needs
of the Student.

/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

3

GEORGE BERNARD SHAW, THE DOCTOR’S DILEMMA, reprinted in THE DOCTOR’S
DILEMMA, GETTING MARRIED, AND THE SHOWING-UP OF BLANCO POSNET 1,32
(Brentano’s ed., 1920) (1906).
-42-