M. et al v. Cumberland Public School

Filing 13

MEMORANDUM AND ORDER: GRANTING Respondent School District's 10 Motion for Summary Judgment on its Counterclaim and with respect to the Petitoners' request for attorney fees. The finding of a procedural violation by the Independent Hearing Officer on the November 30, 2014 Decision is REVERSED. (denying 1 Motion for Attorney Fees; denying 8 Motion for Summary Judgment) -- So Ordered by Judge Mary M. Lisi on 6/3/2015. (Duhamel, John)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
JOHN AND MAUREEN M., individually
and on behalf of J.M.
v.

C.A. No. 14-555-ML

CUMBERLAND PUBLIC SCHOOL

MEMORANDUM AND ORDER

The petitioners, John and Maureen M. (the “Petitioners”),
individually and on behalf of their disabled child, J.M., filed a
petition (the “Petition”) for attorney fees in this Court after
participating in an administrative impartial due process hearing
before an Independent Hearing Officer (“IHO”), pursuant to the
Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C.
1400 et seq. Respondent Cumberland Public School District (the
“School District”) filed an objection to the petition, together
with a counterclaim in which it seeks reversal of the IHO’s only
finding

(of

eight

separate

findings)

that

was

made

in

the

Petitioners’ favor. The matter is before the Court on the parties’
cross-motions for summary judgment.

1

I.

Factual Background and Procedural History1
The Petitioners and the School District are in agreement

regarding

many

of

the

underlying

facts

in

this

case.

It

is

undisputed that during the 2013-2014 school year, the time period
at issue, J.M. was in the second grade in the Cumberland School
District. Petitioners’ SUF 1 (hereinafter, “PSUF”), Respondent’s
SUF 1, 2 (hereinafter, “RSUF”). J.M. received special education and
related services pursuant to an IEP [Individualized Education
Program] developed by his IEP team on December 2, 2013. RSUF 2.
Under that IEP, J.M. spent 80% of his time at school in a regular
classroom. Petitioners’ Ex. 19.

J.M. also received one-on-one or

small group instructions with a special educator in reading,
writing and math. RSUF 4-6; Pet’rs’ Ex. 19.

With respect to

writing and math, those instructions took place in the regular
classroom; the reading instruction was provided in a separate
resource classroom. RSUF 9, 10; Pet’rs’ Ex. 19.
In May 2014, following two IEP meetings in April 2014, J.M.’s
reading sessions were moved from a “resource classroom” to a small
group setting in the “Intense Academic Program”

classroom.

RSUF

12, 13, 15-17. J.M.’s mother requested to see the classroom where

1

Each party presented a Statement of Undisputed Facts (“SUF”)
in support of its position, see Dkt. Nos. 9, 11; neither party
filed a Statement of Disputed Facts to contest the opposing party’s
SUF, leaving both parties’ respective presentations of the facts
unchallenged. See Local Rule LR Cv 56(a)(3).
2

J.M. received reading instruction while class was in session.2 RSUF
19. The School District declined, citing confidentiality concerns.
Decision at 19. Mrs. M. was given the opportunity to view the
classroom when there were no other students present, but she
apparently

declined.

RSUF

20.

She

also

briefly

visited

the

classroom with J.M. and his instructor during a “Celebration of
Learning” event at the school. RSUF 22.
Another IEP for J.M. was developed on June 2, 2014. Apart from
changing the location of J.M’s writing and math instructions, this
IEP was identical to the December 2013 IEP. RSUF 37-39. Instead of
receiving

specialized

instruction

one-on-one

from

a

special

educator in the back of his regular classroom as he did before,
J.M. was to receive that instruction in one-on-one or small group
settings in another classroom. RSUF 40.
On

June

17,

2014,

the

Petitioners

filed

a

due

process

complaint regarding J.M.’s placement in a smaller classroom. The
Petitioners asserted various other claims, including the School’s
alleged refusal to accept the recommendations of consultants hired
by the Petitioners to assist with J.M.’s educational and emotional
health. IHO’s Decision at 4. Following a number of pre-hearings,
the IHO held five days of hearings between September 16 and 26,

2

Apparently, Mrs. M. was under the impression that J.M. was
spending the entire day in that classroom; however, J.M. only
received forty minutes of reading instruction in that room every
school day in May and June 2014. RSUF 19, 20.
3

2014, in the course of which numerous witnesses testified and a
number of exhibits were placed on the record.
On

November

30,

2014,

the

IHO

issued

a

22-page

written

decision, in which he concluded that the School “appropriately
crafted [an] IEP that provided [a] FAPE [Free Appropriate Public
Education] and did not ignore consultant recommendations.” He also
determined, in the sole finding favorable to the Petitioners, that
the School “did commit a procedural violation that inhibited
petitioner’s ability to participate in the IEP process,” namely,
denying the parents access to the smaller classroom setting for
observation

during

classroom

hours.

All

other

claims

by

the

Petitioners were denied.
Specifically, the IHO concluded that the Petitioners failed to
meet their burden of proving their allegations that
(1) the change in J.M.’s placement to a more restrictive
environment was improper;
(2) the proposed IEP failed to provide a FAPE because (a) the
proposed

IEP

educational

was

calculated

benefit,

and

(b)

only
the

to

provide

School

a

District

de

minimis

“failed

to

accommodate obstacles to J.M.’s ability to access FAPE as a result
of his anxiety disorder;”
(3) the School District failed to adopt the recommendations of
the Petitioners’ consultants; and
(4)

the

School

District

committed

4

certain

procedural

violations that substantively inhibited J.M.’s access to a FAPE.
With respect to the last item, the IHO made four separate
findings,

only

one

of

which

was

decided

in

favor

of

the

Petitioners: (a) that “the denial of access to the classroom for
even

a

brief

procedural

visit

during

violation

classroom

because

the

hours
denial

constitute[d]
inhibited

a
the

petitioner[s’] ability to be fully informed members of the IEP
team.”

Decision

at

17

(Dkt.

No.

1-4).

The

IHO

rejected

the

Petitioners’ claims that (b) Extended Year Services were improperly
implemented; (c) the School District failed to supply J. M. with an
“annual IEP;” and (c) the School District did not act in good faith
and changed J.M.’s proposed educational placement after the due
process complaint was filed. Decision at 20-22.
In sum, out of eight discrete determinations by the IHO, seven
were

decided

in

favor

of

the

School

District.

The

single

determination in favor of the Petitioners was limited to a finding
of a “procedural violation.” The IHO noted, however, that “there is
no general right to viewing the environment in [IDEA],” although
“the direction from OSEP [Office of Special Education Programs] is
clearly to allow such viewing if at all possible.” Decision at 1819. Most significantly, the IHO determined that the School District
“appropriately crafted [an] IEP that provided [a] FAPE.” Decision
at 1. It is undisputed that no changes were mandated or implemented
as a result of the IHO’s finding of the “procedural violation.”

5

On December 29, 2014, the Petitioners filed the Petition for
attorney fees in this Court for the “successful prosecution of the
administrative Impartial Due Process Hearing.” The Petition seeks
(1) a declaration from this Court that the Petitioners are “the
prevailing party in this matter,” and (2) payment of $30,650 in
attorney fees. The Petitioners note that no appeal of the Decision
had been filed by the School District. Petition at 1 (Dkt. No. 1).
On December 30, 2014, the School District filed an answer to
the Petition, in which it correctly pointed out that (1) the IHO
concluded that J.M. had been provided with a FAPE, and (2) the
Petitioners received no benefit as a result of the IHO’s finding of
a procedural violation with respect to the classroom inspection.
Answer at 2 (Dkt. No. 2). In addition, the School District asserted
a counterclaim in which it sought a review and reversal of the
IHO’s determination that the Petitioners should have been granted
access to the classroom during the school day. Answer at 8 (Dkt.
No. 2).
In

response,

the

Petitioners

sought

dismissal

of

the

counterclaim and summarily requested this Court to uphold the IHO’s
decision regarding the classroom access issue. Pet’rs’ Answer at 2
(Dkt. No. 3).
Following a Rule 16 conference with this Court on February 11,
2015, the parties filed cross-motions for summary judgment on March
31, 2015 (Dkt. Nos. 8, 9, 10, 11). The Petitioners’ motion is

6

limited to a request of attorney fees, based on repeated (but
erroneous) assertions that, according to the IHO’s findings, J.M.
was denied a FAPE, see Pet’rs Motion at 2, 4. However, the motion
does not address the School District’s counterclaim.
The School District, in its motion, focuses primarily on the
IHO’s finding regarding the classroom inspection which, the School
District contends, was based on incorrect facts and an incorrect
application of the law. Respondent’s Motion at 3 (Dkt. No. 10-1).
Accordingly, the School District calls for a reversal of the IHO’s
Decision on that issue and/or a declaration from this Court that
the Petitioners are not prevailing parties in the administrative
proceedings. With respect to the Petitioners’ request for attorney
fees, the School District submits that, even if the IHO’s Decision
were to be affirmed, the Petitioners do not qualify as prevailing
parties because they did not achieve any benefits in bringing suit
against the School District. Id. at 15.
On April 17, 2015, the School District filed a reply to the
Petitioners’ Motion, challenging (1) the Petitioners’ insistence
that J.M. was denied a FAPE as a result of the lack of access to
the classroom, and (2) the undifferentiated request for $30,650 in
attorney fees for prevailing on a single claim (out of eight)
against the School District. The School District points out that,
notwithstanding the finding of a “procedural violation,” no changes
were made as a result of that particular finding. Pet’rs’ Reply at

7

1-2, 10 (Dkt. No. 12).
The Petitioners, on their part, elected not to file a response
to the School District’s motion, leaving the Respondent’s request
to vacate the IHO’s finding of a single procedural violation
unopposed.
II.

Standard of Review

In reviewing an appeal from an administrative decision under
IDEA, the Court accords “due deference” to the Hearing Officer’s
findings of fact and reviews the Hearing Officer’s rulings of law
under the IDEA framework de novo. Abrahamson v. Hershman, 701 F.2d
223, 230 (1st Cir. 1983)(courts must give “‘due weight’” to state
administrative agencies,” but “ultimately must make ‘independent
decision[s] based on a preponderance of the evidence’”)(quoting
Board of Educ. Of Hendrick Hudson Central School Dist., Westchester
County v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690
(1982)); Ross v. Framingham Sch. Comm., 44 F.Supp.2d 104, 111-12
(D. Mass. 1999), aff’d 229 F.3d 1133 (1st Cir. 2000)(Court’s review
of hearing officer’s findings is “appropriately ‘thorough yet
deferential’”. . . Legal rulings are subject to nondeferential (or
de novo) review.”)(internal citations omitted); Slater v. ExeterWest Greenwich Reg’l Sch. Dist., 2007 WL 2067719 *2 (D.R.I., July
16, 2007).

“[A]ny rulings about applicable law that are not in

conformity

with

disregarded.

applicable

statutes

and

precedents”

are

Ross v. Framingham Sch. Comm., 44 F.Supp.2d at 112.

8

The First Circuit has described the applicable standard of review
as “intermediate,” requiring “‘a more critical appraisal of the
agency determination than clear-error review entails, but which,
nevertheless, falls well short of complete de novo review.’”
Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 25 (1st Cir.
2002)(quoting Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1st
Cir.1993)).
An IDEA motion for summary judgment does not limit the court
to considering the facts in the light most favorable to the
non-moving party; rather, it is “‘a procedural device through which
to decide the case on the basis of the administrative record.’”
Bristol Warren Reg'l Sch. Dist., 758 F.Supp.2d at 87 (quoting
Cranston Sch. Dist. v. Q.D., C.A. No. 06–538ML, 2008 WL 4145980, at
*5 (D.R.I. Sept. 8, 2008)). In making its decision, the court must
impose the burden of proof on “the party ‘challenging the outcome
of the administrative decision,’” here the School District. Bristol
Warren Reg'l Sch. Dist., 758 F.Supp.2d at 87 (quoting Cranston Sch.
Dist., 2008 WL 4145980, at *5). See Schaffer v. Weast, 546 U.S. 49,
62, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005).
III. Attorney Fees
Under the IDEA, the parents of a child with a disability who
prevail in the administrative proceeding or litigation related to
a due process hearing, may be entitled, in the discretion of the
Court, to reimbursement of reasonable attorney fees. 20 U.S.C. §

9

1415(i)(3)(B)(i)(I); Smith v. Fitchburg Pub. Sch., 401 F.3d 16, 22
(1st Cir.2005)(IDEA provides recovery of reasonable attorney's fees
to prevailing party in the court's discretion).
“[A] prevailing party is any party who ‘succeed[s] on any
significant

issue

...

which

achieves

some

of

the

benefits

plaintiffs sought in bringing suit.’ ” Maine Sch. Admin. Dist. No.
35 v. Mr. and. Mrs. R., 321 F.3d 9, 14 (1st Cir. 2003). A party in
a proceeding or law suit related to IDEA is considered “prevailing”
when there is a “material alteration of the legal relationship of
the parties” as well as “judicial imprimatur on the change.” Smith
v. Fitchburg Pub. Sch., 401 F.3d 16, 22 (1st Cir. 2005)(quoting
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human
Res., 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001)). Such
“judicial imprimatur” includes an administrative hearing involving
a hearing officer. Smith v. Fitchburg Pub. Sch., 401 F.3d at 22 n.
9. (“[F]or purposes of the IDEA, a party may ‘prevail’ in an
administrative hearing—thus the appropriate involvement of a [state
educational agency] hearing officer can provide the necessary
‘judicial imprimatur.’ ”).
IV.

Discussion

At the outset, the Court notes that the IHO states in the
Decisions’ conclusion section that “[t]he petitioner has requested
prevailing party status. I will address prevailing party status in
a separate opinion.” Decision at 22 (Dkt. No. 1-4). Neither party

10

made reference to this statement in any of the submitted briefs,
and no separate opinion by the IHO regarding prevailing party
status was included in the Administrative Record submitted to this
Court. On May 7, 2015, the Court conducted a telephone conference
in

which

both

parties

acknowledged

that,

notwithstanding

his

earlier statement in the Decision, the IHO had informed them via a
brief memorandum that he did not intend to address the question of
prevailing party status.3

Accordingly, the Court will proceed to

resolve this issue without the benefit of the IHO’s conclusion.
The Petitioners commenced proceedings in this Court for the
sole purpose of obtaining reimbursement of the attorney fees that
they incurred in the administrative proceedings. Petition at 4
(Dkt. No. 1). In objecting to the Petitioners’ request for attorney
fees, the School District asserted a counterclaim, seeking the
reversal of the IHO’s determination with respect only to the single
claim

of

a

“procedural

violation”

that

was

decided

in

the

Petitioners’ favor (and did not result in any change to the June
2014 IEP for J.M. or any other benefits to the Petitioners).
Respondents’ Answer at 8 (Dkt. No.2). Although the Petitioners
summarily requested in their answer that the IHO’s decision on that
issue be upheld, Petitioners’ Answer at 2 (Dkt. No. 3), their
request was entirely unsupported and no argument to that effect was

3

Neither party had thought to include this memorandum in the
administrative record that was submitted to this Court.
11

developed. Likewise, the Respondent’s request for a reversal of the
IHO’s Decision was not addressed in the Petitioners’ cross-motion
for summary judgment, (Dkt. No. 8-1). As such, the Respondent’s
motion

to

overturn

the

IHO’s

finding

regarding

the

School

District’s denial of the requested classroom visit during school
hours is unopposed.
A

review

of

the

IHO’s

Decision,

particularly

the

sole

determination the IHO made in favor of the Petitioners, reveals
that the determination was in error. First, the Decision appears to
reflect the IHO’s understanding that, in April 2014, J.M.

was

placed into a small classroom setting for the delivery of his
entire specialized education when, in fact, J.M. only received
reading

instruction

in

the

new

setting.

Decision

at

15.

In

accordance with both his December 2013 IEP and the new June 2014
IEP, J.M. continued to receive math and writing instructions in the
regular education classroom in May and June 2014 (when Mrs. M.
requested access to the classroom.) Decision at 15.
Further,

is

uncontested

that

Mrs.

M.

was

offered

an

opportunity to view the classroom when there were no other students
present, but that she did not avail herself of the opportunity.
Respondents’ SUF 21. Likewise, it is undisputed that she visited
the classroom with J.M. and his reading instructor in May 2014.
Respondents’ SUF 22.
Finally, as the IHO acknowledged in his determination, “there

12

is no[] specific right in the Act to view a proposed educational
placement or learning environment.” Decision at 18. The Decision
quotes extensively from an OSEP [Office of Special Education
Program] policy letter, which states that “neither the statute nor
the regulations implementing the IDEA provide a general entitlement
for parents of children with disabilities . . . to observe children
in any current classroom or proposed educational placement. The
determination of who has access to classrooms may be addressed by
State and/or local policy.” Decision at 15. Although the letter
encourages “school district personnel and parents to work together
in ways that meet the needs of both the parents and the school,
including providing opportunities for parents to observe their
children’s classrooms and proposed placement options,” id., the
undisputed facts in this case establish that the School District
did

make

such

an

effort:

it

invited

Mrs.

M.

to

view

the

classroom—in which J.M. was spending just forty minutes per day at
the time of her request—when no other children were in attendance.
Mrs. M. declined the opportunity, although she did visit the
classroom while both her child and the reading instructor were
present.
Notwithstanding the Petitioners’ continued insistence that,
according to the IHO, such a procedural violation resulted in
denial of a FAPE to J.M., the record is clear that this was not the
case. Rather, the Decision explicitly states that the Respondent

13

“appropriately crafted [an] IEP that provided [a] FAPE.” Decision
at 1. At most, the IHO concluded that, by denying the Petitioners
access to the classroom while class was in session, the School
District had impeded the Petitioners’ “opportunity to participate
in the decision-making progress regarding the provision of a FAPE.”
Decision at 17. Even that determination, however, was called into
doubt by the IHO’s acknowledgment that “there is no general right
to viewing the environment in the statute.” Moreover, there is no
indication, and the Petitioners have not asserted, that they
received

any

of

the

relief

they

sought

in

commencing

the

administrative proceedings or that the sole determination in their
favor resulted in any benefit to them. In sum, there is no support
for the Petitioners’ insistence that J.M. was denied a FAPE or
their assertion that they qualify as

“prevailing parties” in the

underlying proceedings.
Under those circumstances, the Court is of the opinion that
the IHO’s finding regarding the Petitioners’ requested access to
the “Intense Academic Program” classroom during class was in error.
For the foregoing reasons, and in the absence of any substantive
objections

to

the

School

District’s

counterclaim,

the

School

District’s motion for summary judgment is granted and the IHO’s
Decision is reversed solely with respect to the Petitioners’ claim
that the School District inappropriately denied them access to the
location

of

the

proposed

educational

14

placement.

Because

this

reversal results in the School District prevailing on every claim
made by the Petitioners, the Petitioners are not “prevailing
parties” and they are not entitled to attorney fees.
The Court notes that, even if the Court were to affirm the
sole finding by the IHO in the Petitioners’ favor, the Petitioners
do not qualify as “prevailing parties” because they undisputedly
received no benefit from that finding and because no changes were
made because of it. Accordingly, the Petitioners would not be
entitled to attorney fees even if the IHO’s finding on the access
issue were to be affirmed.
Conclusion
For the reasons stated herein, the School District’s motion
for summary judgment on its counterclaim and with respect to the
Petitioners’ request for attorney fees is GRANTED. The finding of
a procedural violation by the IHO in the November 30, 2014 Decision
is REVERSED.

SO ORDERED.
/s/ Mary M. Lisi
Mary M. Lisi
United States District Judge
June 3, 2015

15