United States Court of Appeals 

For the First Circuit 

No. 16-2122 

NICOLE JOHNSON, Parent; NS, Minor, 

Plaintiffs, Appellants, 

v. 

BOSTON PUBLIC SCHOOLS; BUREAU OF SPECIAL EDUCATION APPEALS, 

Defendants, Appellees, 

EILEEN NASH; LYNN GRAHAM O'BRIEN; JOAN CURRAN; LITA O'MALLEY; 

JEREMIAH FORD; MARCIE GOLDOWSKI; ELIZABETH DRAKE; REBECCA HART; 

TERELLE CLARK; SUE GIBBONS; JENNIFER HARRIS; DENISE ENG; 

CHILDREN'S HOSPITAL; MELISSA BROWN; THOMAS CHANG, Superintendent 

of Schools for the City of Boston; ANDREA ALVES-THOMPSON; ANN 

MARIA ACCOMANDO, 

Defendants. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Allison D. Burroughs, U.S. District Judge] 

Before 

Lynch, Stahl, and Thompson, 

Circuit Judges. 

 Michael C. Walsh, on brief for appellants. 

Eugene L. O'Flaherty, Corporation Counsel, with whom Karen G. 

Castrada, Assistant Corporation Counsel, on brief for appellee 

Boston Public Schools. 
 Maura Healey, Attorney General, with whom Bryan Bertram, 

Assistant Attorney General, on brief for appellee Bureau of Special 

Education Appeals. 

 

October 12, 2018 
- 3 - 

STAHL, Circuit Judge. Plaintiff-Appellant Nicole 

Johnson, acting on behalf of her minor child ("N.S."), initiated 

a proceeding before the Massachusetts Bureau of Special Education 

Appeals ("BSEA") pursuant to the Individuals with Disabilities 

Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq. Johnson sought, 

inter alia, placement for N.S. in a school outside of the Boston 

Public Schools ("BPS") system. The hearing officer ultimately 

ruled against all of Johnson's claims in a proceeding she now 

contends was tainted by multiple errors. On review, the district 

court upheld this determination and granted summary judgment to 

Defendants-Appellees BPS and the BSEA. We affirm. 

I. Statutory Framework and Factual Background 

A. 

We begin by describing the statutory framework of the 

IDEA, which provides necessary context for understanding the 

factual and procedural history at issue. The IDEA offers states 

partial federal funding for special education of children with 

qualifying disabilities. 20 U.S.C. § 1412(a). In exchange, 

states receiving IDEA funds commit to providing all of those 

disabled children within their jurisdiction "a free appropriate 

public education ('FAPE') in the least restrictive environment 

possible." Sebastian M. v. King Philip Reg'l Sch. Dist., 685 F.3d 

79, 81 (1st Cir. 2012) (citing 20 U.S.C. § 1412(a)(1), (5)). A 

FAPE must include both "specially designed instruction, at no cost 
- 4 - 

to parents, to meet the unique needs of a child with a disability" 

and "such developmental, corrective, and other supportive services 

. . . as may be required to assist a child with a disability to 

benefit from special education." 20 U.S.C. § 1401(9), (26), (29). 

"If a school system is unable to furnish a disabled child with a 

FAPE through a public school placement, it may be obliged to 

subsidize the child in a private program." D.B. ex rel. Elizabeth 

B. v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012) (quotation marks 

and citation omitted). 

"The primary vehicle for delivery of a FAPE" is an 

Individualized Education Program ("IEP"). Id. (internal quotation 

marks and citations omitted). "An IEP must be custom-tailored to 

suit a particular child," Sebastian M., 685 F.3d at 84 (citation 

omitted), and must be "reasonably calculated to enable a child to 

make progress appropriate in light of the child's circumstances," 

Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, -

- U.S. -, 137 S. Ct. 988, 999 (2017). An IEP need not, however, 

offer the student "an optimal or an ideal level of educational 

benefit[.]" Lessard v. Wilton Lyndeborough Coop. Sch. Dist. 

(Lessard I), 518 F.3d 18, 23-24 (1st Cir. 2008) (citations 

omitted). 

While the IDEA envisions a process in which parents, 

educators, specialists, and others collaborate to develop the IEP, 

it also contains dispute resolution mechanisms for parents who are 
- 5 - 

dissatisfied with some element of the IEP. This includes both a 

formal mediation process, 20 U.S.C. § 1415(e), and, separately, an 

"impartial due process hearing" held before a designated state or 

local education agency, id. § 1415(f).1 In Massachusetts, these 

processes take place before the BSEA. See 603 Mass. Code Regs. 

28.08. 

Finally, parents may bring a civil action challenging 

the outcome of the due process hearing in either state or federal 

court. 20 U.S.C. § 1415(i)(2)(A); 603 Mass. Code Regs. 28.08(6). 

B. 

What follows is the factual and procedural history of 

the case "as supportably found by the district court," Sebastian 

M., 685 F.3d at 82, focusing on the facts necessary to adjudicate 

this appeal.2

Johnson is the mother of N.S., a young male afflicted 

with significant deafness. Although N.S. has a cochlear implant 

to assist with his hearing, nonetheless his hearing remains 

 1 The Code of Massachusetts Regulations explicitly states that 

the due process hearing need not be preceded by a mediation. 603 

Mass. Code Regs. 28.08(4)(b). 

2 The district court, in turn, relied largely on the BSEA's 

Findings of Fact, noting that "[n]either party has raised any 

objection to the Hearing Officer's factual findings, and both 

parties have relied upon these findings in their respective 

filings . . . ." Johnson v. Bos. Pub. Sch., 201 F. Supp. 3d 187, 

192 n.1 (D. Mass. 2016). 
- 6 - 

substantially impaired. The parties do not dispute that N.S.'s 

disability places him within the coverage of the IDEA.

Beginning at age three and continuing for roughly twoand-a-half years, N.S. attended the Horace Mann School for the 

Deaf ("Horace Mann"), a public school in the BPS system. Several 

evaluations conducted near the time that N.S. initially enrolled 

at Horace Mann concluded that N.S.'s language skills were 

"significantly delayed" for his age. One of these reports noted 

that N.S. did not use words or word approximations or demonstrate 

signs of understanding spoken language, and placed his language 

abilities "at the 20 to 21 month level." Two of the evaluations 

recommended instruction that incorporated both American Sign 

Language ("ASL")3 and spoken communication. 

N.S.'s IEP team first met in October 2011 to devise a 

plan for the 2011-12 school year. The resulting plan called for 

N.S. to be placed in a "substantially separate classroom . . . 

taught by a teacher for the deaf," and for instruction using both 

ASL and spoken English. Pursuant to Johnson's wishes, the goal of 

the IEP was for N.S. "to be mainstreamed . . . .[,] preferably in 

a parochial school." 

 3 Comments by educators, clinicians, and others in the record 

refer variously to ASL, "sign language," "signing," and other, 

similar terms. For accuracy, we use the terms as they appear in 

the record. 
- 7 - 

N.S.'s IEP team met again roughly one year later to 

update the IEP for the 2012-13 school year. See 20 

U.S.C. § 1414(d)(4)(A) (requiring review and revision as needed of 

IEP at least annually). The IEP noted several areas in which N.S. 

had improved during the previous year, including his 

identification of a small number of letters and numbers, 

understanding of some "simple, one-step directions when given in 

sign and speech within a contextual situation," and consistent 

detection of various sounds. These improvements notwithstanding, 

the team observed that N.S.'s language continued to lag 

significantly behind his age. The updated IEP recommended 

instruction in sign-supported spoken English and in ASL at Horace 

Mann as well as occupational therapy. 

N.S.'s teachers and treating therapists reported that he 

made additional progress during the 2012-13 school year, including 

"spontaneously signing" some words, naming classmates and teachers 

in sign language, imitating words in sign, and attempting to 

approximate speech. Around the same time, clinicians at Boston 

Children's Hospital similarly observed that N.S. was beginning to 

express himself through signing, though he was "not yet speaking 

with clearly articulated speech," and scored N.S.'s receptive 

language skills at the two-year, two-month-old level. The 

Children's Hospital report urged continued use of "a combination 
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of spoken and signed language" to facilitate N.S.'s linguistic 

growth. 

Despite this reported progress, Johnson informed the IEP 

team that she wished to limit N.S.'s instruction to sign-supported 

spoken English — excluding ASL instruction — as N.S.'s family did 

not use sign language at home. Although expressing concern about 

the request, in April of 2013 the IEP team modified the 2012-13 

IEP to reflect Johnson's preference. 

While progress reports for the period between January 

and June 2013 indicate that N.S.'s ability to communicate continued 

to improve, his progress was slow and the IEP team recommended 

that N.S. repeat kindergarten. Johnson rejected this 

recommendation, instead requesting that N.S. be promoted and 

placed in a class without "peers who used ASL or who had [] 

disabilities" other than hearing impairment. The administrative 

record indicates that Horace Mann expressed concern that it "did 

not have a class that met [Johnson's] demands." 

In June 2013, N.S. lost his speech processor, a component 

of his cochlear implant that assists with processing sound, and it 

was not replaced for five months. Evaluations prior to, during, 

and after that period note N.S.'s inconsistent use of the device 

and stressed the importance to his linguistic development of using 

the processor regularly. 
- 9 - 

These and other interactions with Johnson found in the 

administrative record show numerous statements by educators and 

clinicians reporting that N.S.'s progress was negatively affected 

by Johnson's intransigent opposition to the use of ASL and, later, 

sign-supported spoken English in N.S.'s education and at home, his 

inconsistent use of the cochlear processor, difficulty contacting 

Johnson, and her apparent lack of follow-up on appointments with 

and recommendations given by various hearing and speech 

specialists. 

N.S. underwent an unscheduled speech and language 

evaluation in October 2013 to address Johnson's continuing 

concerns that N.S.'s spoken English skills were not advancing at 

a sufficient rate. This evaluation included a comparison of N.S.'s 

receptive and expressive language abilities using both spoken 

English only and sign-supported spoken English. The receptive 

language assessments in particular found that, when using signsupported English, "given the use of single word signs, [N.S.'s] 

ability to understand vocabulary words [was] similar to that of 

same aged, hearing peers." Using sign-supported spoken English, 

he also apparently demonstrated some ability to understand 

negatives in sentences, make inferences, understand the use of 

objects, and follow commands without the use of gestural cues, and 

to understand some higher level academic skills. In contrast, 

during the spoken English assessment, N.S.'s correct 
- 10 - 

identification of vocabulary words was "similar to chance" and the 

evaluator was not able to establish a baseline for testing of other 

concepts. Altogether, the evaluation concluded that N.S.'s 

linguistic abilities continued to be "significantly delayed," with 

scores on the various tests administered ranging from "severely 

impaired to average." As a result, the evaluator recommended that 

N.S. continue to receive instruction in both spoken and signsupported spoken English as well as speech and language therapy. 

Other evaluations conducted at the same time likewise recommended 

that N.S. continue to receive instruction in sign-supported spoken 

English as well as spoken English. 

Following the unscheduled evaluation, N.S.'s IEP team 

offered to amend the IEP to provide, inter alia, additional 

language therapy and other "direct services" while keeping N.S. at 

Horace Mann. Johnson rejected this proposal and, separately, 

proceeding pro se sought a hearing before the BSEA to challenge 

the 2013-14 IEP. Johnson sought out-of-district placement in a 

program focused solely on spoken English and reiterated her 

position that Horace Mann had inappropriately placed N.S. in 

classes with students with disabilities other than hearing loss. 

BSEA initially scheduled a hearing for November 2013, but postponed 

the hearing on several occasions. 

 In December 2013, progress reports from Horace Mann 

indicated that N.S.'s language skills improved in a number of 
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areas, including construction of sentences and responses in spoken 

English, identification of letters, and writing. Johnson herself 

acknowledged these improvements in a letter thanking N.S.'s 

teacher. However, a Children's Hospital report from the same time 

frame indicated that N.S.'s language skills remained extremely 

limited and below age-level expectations. 

Tensions between Johnson and Horace Mann expanded beyond 

disagreements regarding N.S.'s educational program. Following her 

February 2014 altercation with the vice principal, Johnson ceased 

sending N.S. to Horace Mann and eventually withdrew him from the 

school altogether. Thereafter, Johnson obtained an itinerant 

student number for N.S., allowing him to continue to receive 

services "consistent with his IEP."4 Johnson, 201 F. Supp. 3d at 

196. 

At Johnson's request, the Clarke School for Hearing and 

Speech ("Clarke") performed an independent evaluation of N.S. in 

March 2014. That assessment indicated that N.S.'s performance was 

"consistent with a child who was just implanted" with a cochlear 

device, and concluded that his "present level of language [was] . 

. . insufficient to allow for adequate academic development." The 

 4 Given that Johnson had rejected the proposed IEP for 2013-

14, it is not clear from the record which IEP was operative at 

this time. The itinerant student designation did, however, allow 

N.S. to receive 11 auditory, speech, and language therapy sessions 

at the Clarke School for Hearing and Speech during the summer of 

2014. 
- 12 - 

report attributed delays in linguistic skills to "a combination of 

factors: his inconsistent use of his cochlear implant . . . , 

inconsistent expectations regarding mode of communication, 

maladaptive behaviors and limited spoken or sign language skills." 

In May 2014, N.S.'s IEP team amended its proposed plan 

in response to the Clarke evaluation, increasing the therapy and 

training already provided to N.S. and honoring Johnson's request 

to place N.S. in a classroom in which spoken English would be the 

primary language of instruction. BPS also funded auditory, speech, 

and language services to compensate for those missed between N.S.'s 

departure from Horace Mann and the end of the 2013-14 school year. 

Johnson, dissatisfied with BPS's offer, amended her BSEA hearing 

request to include a claim for compensatory services and other 

monetary damages. 

C.

Beginning in June 2014, Johnson and BPS attempted to 

resolve their dispute regarding (1) N.S.'s educational placement; 

and (2) compensatory services beyond those already agreed to by 

BPS. As part of these negotiations, BPS provided Johnson with 

information on programs available at Clarke and the READS 

Collaborative ("READS"). READS was described by the district court 

as "a private school . . . . offer[ing] an educational program for 

children with hearing disabilities." Johnson, 201 F. Supp. 3d at 
- 13 - 

197 n.2. Johnson accepted placement at READS in early October 

2014, and N.S. began attending that school shortly thereafter. 

On October 16, 2014, Johnson and BPS participated in a 

prehearing telephone conference with the BSEA, during which the 

parties attempted to negotiate a settlement in the presence of the 

hearing officer. BPS stated that it would only agree to a 

settlement that resolved both the placement and compensatory 

services claims, and the parties appeared to reach such an 

agreement during that call. The following day, however, Johnson 

informed BPS that she agreed to the placement proposal (which would 

leave N.S. at READS) but not the proposed compensation settlement. 

BPS promptly withdrew its offer to fund N.S.'s placement at READS.5 

The BSEA hearing took place from November 17-19, 2014, 

and included extensive testimony and exhibits. On January 2, 2015, 

the hearing officer issued her decision, concluding that the 

proposed 2013-14 and 2014-15[6] IEPs offered 

[N.S.] a FAPE, and that [N.S.'s] progress 

during the two and a half years in [BPS] was 

effective given: the interruptions in 

services caused by [Johnson], problems with 

[N.S.'s] devices which caused him to spend 

lengthy periods without access to sound; 

 5 BPS also notified Johnson that N.S.'s placement at READS 

would be terminated at that time. The BSEA subsequently entered 

a "stay-put" order which permitted N.S. to remain at READS pending 

resolution of the hearing. 

6 Despite the stay-put order, N.S.'s IEP team met in November 

2014 to update the IEP for the coming school year. Johnson 

rejected this IEP and challenged it as part of the then-ongoing 

BSEA proceedings. 
- 14 - 

methodological limitations which impacted 

[N.S.'s] ability to acquire language; and the 

lack of effective access to 

language/communication in the home due to 

[Johnson's] belief that hearing sound without 

the ability to understand language was 

sufficient for N.S. to acquire language and 

learn to speak. Placement at READS, although 

appropriate, was unnecessary and largely 

duplicative of the program and services 

offered [to N.S.] at the Horace Mann School. 

Notably for purposes of this appeal, the hearing officer also 

concluded that Johnson's credibility as a witness had been 

"seriously compromised" by her conduct during settlement 

negotiations.7 The hearing officer also noted Johnson's "admitted 

bias against public schools" and related preference for parochial 

schools. 

Thereafter, Johnson, proceeding pro se, commenced a 

civil action challenging the hearing officer's decision in the 

United States District Court for the District of Massachusetts. 

See 20 U.S.C. § 1415(i)(2)(A). Subsequently, on September 11, 

2015, she retained counsel. Johnson both appealed the BSEA's 

determination that the 2013-14 and 2014-15 IEPs provided a FAPE 

and raised a number of claimed errors during the hearing itself.8 

 7 Specifically, the hearing officer noted Johnson's "lack of 

memory and insistence that [BPS] had not explained multiple times 

that its offer for [sic] a READS placement was contingent on her 

acceptance of a settlement that fully disposed of all claims 

against [BPS], including compensatory services." 

8 Johnson also raised a number of non-IDEA claims before the 

district court. On Johnson's motion, the district court allowed 

her to submit an amended "bifurcated complaint" which separately 
- 15 - 

In support of her attack on the adequacy of the IEPs, Johnson 

introduced additional records, specifically N.S.'s 2015 progress 

reports from READS and select medical records from 2015. 

BPS moved for summary judgment on the IDEA claims, and 

the BSEA subsequently joined that motion. The district court 

granted the motion and affirmed the BSEA's decision. This appeal 

followed. 

II. Discussion 

 Johnson raises a number of arguments on appeal. First, 

she contends that the district court erroneously concluded that 

she waived her argument that N.S. should be "mainstreamed" by 

failing to raise "mainstreaming" before the BSEA. Second, Johnson 

claims that the hearing officer's evaluation of her credibility 

included consideration of impermissible facts and evidenced bias 

against her. Finally, Johnson argues that the evaluation by both 

the district court and hearing officer of N.S.'s educational 

progress and the sufficiency of the challenged IEPs does not 

comport with the standard announced by the Supreme Court's decision 

in Endrew F., 137 S. Ct. 988.9 We consider each of these claims 

in turn. 

 

addressed the IDEA and non-IDEA claims. The present appeal 

pertains only to the IDEA claims. Johnson has not appealed the 

non-IDEA claims, and the time to do so has passed. 

9 Appellees initially argued that this court lacked 

jurisdiction over this appeal, as the order appealed dismissed 

only Johnson's IDEA claims and, they argued, failed to provide a 
- 16 - 

A. 

 District courts considering challenges to administrative 

IDEA decisions apply an intermediate standard of review that we 

have called "involved oversight." D.B., 675 F.3d at 36. Under 

that standard, 

[a] district court reviews the administrative 

record, which may be supplemented by 

additional evidence from the parties, and 

makes an independent ruling based on the 

preponderance of the evidence. However, that 

independence is tempered by the requirement 

that the court give due weight to the hearing 

officer's findings. As a result, a district 

court's review falls somewhere between the 

highly deferential clear-error standard and 

the non-deferential de novo standard. 

 

final judgment within the meaning of 28 U.S.C. § 1291. Shortly 

after appellees filed their respective briefs, however, the 

district court entered an order dismissing Johnson's remaining, 

non-IDEA claims. While the district court did not enter a 

"separate document" setting forth the judgment, as contemplated by 

Federal Rule of Civil Procedure 58, appellees concede that the 

second opinion constitutes a final judgment. We agree: the 

district court's second order had the effect of denying Johnson 

all relief and more than 150 days have passed since it was entered. 

See Fed. R. Civ. P. 58(c)(2) ("For purposes of these rules, 

judgment is entered . . . when the judgment is entered in the civil 

docket under Rule 79(a) and the earlier of these events occurs: 

(A) it is set out in a separate document; or (B) 150 days have run 

from the entry in the civil docket."). The fact that the judgment 

has not yet been set forth on a "separate document" does not affect 

the validity of the appeal. See Fed. R. App. P. 4(a)(7)(B). 

Likewise, even assuming that the initial appeal was premature 

because it was not accompanied by an entry of judgment, the 

subsequent entry of final judgment cures that deficiency. See 

Barrett ex rel. Estate of Barrett v. United States, 462 F.3d 28, 

34-36 (1st Cir. 2006) (premature appeal of dismissal of less than 

all claims ripened into timely appeal after entry of judgment under 

Federal Rule of Civil Procedure 58). Accordingly, we conclude we 

have jurisdiction over this appeal. See Constien v. United States, 

628 F.3d 1207, 1210-12 (10th Cir. 2010). 
- 17 - 

Id. at 35–36 (internal quotation marks, alterations, and citations 

omitted). 

 This court, however, applies a "more traditional" 

standard of review to its evaluation of the district court's 

decision. Id. at 36. We review the district court's 

determinations of law de novo, and its findings of fact for clear 

error. Doe v. Cape Elizabeth Sch. Dist., 832 F.3d 69, 76 (1st 

Cir. 2016). "Where the case raises mixed questions of law and 

fact, we employ a 'degree-of-deference continuum,' providing 'nondeferential plenary review for law-dominated questions' and 

'deferential review for fact-dominated questions.'"10 Id. at 76-

77 (quoting Mr. I ex rel. L.I. v. Me. Sch. Admin. Dist. No. 55, 

480 F.3d 1, 10 (1st Cir. 2007)). 

The majority of Johnson's challenges raise only 

questions of law. Her final claim of error, however, includes 

both a pure question of law, i.e. whether the district court 

applied the proper standard in evaluating N.S.'s educational 

progress, and a mixed question of law and fact, i.e. whether, 

 10 Though this case comes to us following a grant of summary 

judgment, "a motion for summary judgment in an IDEA case is simply 

a vehicle for deciding the relevant issues, and the non-moving 

party is not entitled to the usual inferences in its favor . . . . 

[n]or does the presence of disputed issues of fact preclude the 

award of summary judgment." Sebastian M., 685 F.3d at 84-85 

(citations omitted). 
- 18 - 

measured against the correct standard, N.S.'s progress under the 

challenged IEPs was sufficient. 

B. 

 Johnson first argues that the BSEA hearing officer 

overlooked her argument that N.S. should be "mainstreamed." In 

IDEA parlance, "mainstreaming" refers to the law's directive that 

states must ensure that disabled students are educated in the 

"least restrictive environment," and particularly that "[t]o the 

maximum extent appropriate, children with disabilities . . . are 

educated with children who are not disabled . . . ." 20 

U.S.C. § 1412(a)(5)(A). The district court declined to entertain 

this argument, concluding that Johnson did not raise it before the 

BSEA and so failed to satisfy the IDEA's administrative exhaustion 

requirement. Johnson, 201 F. Supp. 3d at 205-06. 

 While conceding that she never used the word 

"mainstreaming" before the hearing officer, Johnson contends that 

she implicitly "raised this point in argument and laid the factual 

predicates onto the record." She emphasizes several statements in 

her written "closing argument" to the BSEA, such as her statement 

that "so many students with disabilities like [N.S.] are placed 

unnecessarily in segregated settings like Horace Mann and [] so 

few [students] were included with [] typically developing peers." 

She also points to repeated arguments in that document that N.S. 

should be educated with an appropriate "peer group," and asks 
- 19 - 

rhetorically "[w]hat else would a mainstreaming argument look 

like, other than a peer group argument?" 

In our view, Johnson's contention that these statements 

demonstrate her pursuit of a "mainstreaming" argument is belied by 

context. Viewed in isolation, phrases like those quoted above 

might indeed suggest that N.S. should be placed in a class with 

"children who are not disabled." It is evident, however, that 

this was not the thrust of Johnson's argument before the hearing 

officer; rather, she sought out-of-district placement for N.S. 

with other, similarly disabled students. Her "closing argument" 

itself makes this clear: following the language quoted above, 

Johnson urges the conclusion that the READS Collaborative 

"provid[es] the 'Least Restrictive Environment'" and an 

appropriate peer group of hearing-impaired students. In other 

words, Johnson's use of those phrases was not directed at 

encouraging the BSEA to "mainstream" N.S. into a classroom with 

hearing students, but only to contrast the student body at READS 

with that at Horace Mann, which she claimed included students with 

disabilities other than hearing impairment. This understanding 

accords with the rest of the record: while Johnson consistently 

sought placement for N.S. at specialized schools for the hearingimpaired, we find no indication that she ever sought to have him 

placed with his hearing peers. 
- 20 - 

Finding as we do that Johnson did not present a 

"mainstreaming" argument to the BSEA, we have no difficulty 

concluding it cannot be considered here. "IDEA requires that a 

plaintiff raise or exhaust claims concerning a disabled child's 

'educational situation' in the due process hearing." Rafferty v. 

Cranston Pub. Sch. Comm., 315 F.3d 21, 25 (1st Cir. 2002) (citation 

omitted). 

C. 

 Johnson next levels a series of claims based on the 

conduct of the hearing itself. We examine these in turn. 

i. 

 Johnson raises a number of challenges to the hearing 

officer's decision, insisting that the hearing officer 

impermissibly relied on statements Johnson made at the prehearing 

conference. Johnson also maintains that the hearing officer 

demonstrated bias against her by stating at that hearing that 

Johnson's decision to proceed was a gamble and that she should 

seriously consider settlement, and that the hearing officer should 

have recused herself due to that bias. 

Johnson first contends that Federal Rule of Evidence 408 

(rendering evidence of "Compromise Offers and Negotiations" 

inadmissible) should be extended to settlement discussions before 

the hearing officer. Absent an express requirement, however, 

administrative hearings are not bound by the Federal Rules of 
- 21 - 

Evidence. See Fed. Trade Comm'n v. Cement Inst., 333 U.S. 683, 

705-06 (1948) ("[A]dministrative agencies . . . have never been 

restricted by the rigid rules of evidence."); R & B Transp., LLC 

v. U.S. Dep't of Labor, Admin. Review Bd., 618 F.3d 37, 45 (1st 

Cir. 2010) (stating that "[t]he Federal Rules of Evidence do not 

apply in APA proceedings" and applying rules specific to agency in 

question); see also Fed. R. Evid. 101, 1101 (listing covered 

proceedings). The rules governing BSEA hearings explicitly 

decline to bind due process hearings to "the rules of evidence 

applicable to courts[.]" Mass. Dep't of Elementary & Secondary 

Educ., Hearing Rules for Special Appeals ("Hearing Rules"), Rule 

X(C). The assertion that the Federal Rules of Evidence govern 

BSEA proceedings is thus baseless.11 

 Johnson next argues that these negotiations were 

protected by the IDEA's exclusion of evidence of "[d]iscussions 

that occur during the mediation process[.]" 20 U.S.C. 

§ 1415(e)(2)(G); see also 603 Mass. Code Regs. 28.08(4)(b) ("All 

 11 Johnson also attempts to back-door the Federal Rules of 

Evidence into the administrative proceedings, arguing that the 

district court cannot consider evidence of the settlement 

negotiation in the administrative records. We find no support for 

this position. Moreover, given the record here, we decline to 

find that the district court erred in reviewing evidence of the 

settlement discussion that was properly considered by the hearing 

officer below. See, e.g., New Dynamics Found. v. United States, 

70 Fed. Cl. 782, 797-98 (Fed. Cl. 2006) ("[I]f plaintiff is right, 

the [agency] would be obliged to apply those same evidence rules 

derivatively, lest the court strike materials that it relied upon 

in denying a [claim]."). 
- 22 - 

discussions that occur during mediations are confidential and may 

not be used as evidence in a hearing."). "Mediation" does not, 

however, refer to any setting in which the parties discuss 

settlement in front of a third party, but only negotiations that 

occur before a designated mediator. See 20 U.S.C. 

§ 1415(e)(2)(A)(iii) (stating that "mediation" must be "conducted 

by a qualified and impartial mediator who is trained in effective 

mediation techniques."); 34 C.F.R. § 300.506(b)(iii) (same). 

Here, the negotiations were before a hearing officer who convened 

the parties for a prehearing conference. There is no evidence 

that the parties sought to designate the hearing officer as a 

"mediator," and the fact that the parties discussed settlement at 

that conference did not transform it into a mediation.12 Indeed, 

the BSEA rules explicitly contemplate the fact that a prehearing 

 12 While neither the IDEA nor the BSEA rules explicitly 

prohibit a hearing officer from acting as a mediator, both appear 

to envision those positions as entirely separate roles. See 603 

Mass. Code Regs. 28.08(3) ("Mediations and hearings shall be 

conducted by impartial mediators and hearing officers who do not 

have personal or professional interests that would conflict with 

their objectivity in the hearing or mediation and who are employed 

to conduct those proceedings."); U.S. Dep't of Educ. Office of 

Special Educ. and Rehab. Services, OSEP MEMO 13-08, OSEP Memo and 

Q&A on Dispute Resolution, at 6 (July 23, 2013) (noting that "[t]he 

mediator, in the case of mediation, and the hearing officer, in 

the case of a due process hearing, must be a qualified and 

impartial individual. Aside from these similarities, there are 

important differences."). We note also that the BSEA claims in 

its brief that, separate from the due process hearing, Johnson and 

BPS did in fact participate in a mediation held before a BSEA 

mediator. The record does not appear to contain any mention of 

this mediation. 
- 23 - 

conference might include such discussions. See Hearing Rules, 

Rule V(B) ("Participants in a prehearing conference must have full 

authority to settle the case or have immediate access to such 

authorization."). These same governing BSEA rules do not require 

that the prehearing conference be confidential. Id. Rule X(C). 

Simply put, because there was no mediator during the negotiations, 

there is no basis to place the prehearing conference within the 

coverage of Section 1415(e)(2)(G).13

 Lastly, Johnson argues that consideration of these 

unsworn statements demonstrates impermissible bias and prejudging 

of facts by the hearing officer. We disagree. At the outset, we 

do not view the credibility determination, without more, as 

indicative of "actual bias or hostility" towards Johnson, see 

Roland M. v. Concord Sch. Comm., 910 F.2d 983, 997-98 (1st Cir. 

1990), nor do we find any evidence of such bias elsewhere in the 

record. Statements by the hearing officer that moving forward 

with the proceeding entails a risk, and so that settlement may be 

well-advised, do not evince bias. Likewise, we find no authority 

for treating an adverse credibility determination based on the 

witness's conduct before a tribunal as impermissible prejudgment 

 13 Johnson's argument regarding the Massachusetts state law 

governing "mediation privilege" fails for the same reason. Mass. 

Gen. Laws ch. 233 § 23C (mediator defined as individual who, inter 

alia, "enters into a written agreement with the parties to assist 

them in resolving their disputes"). 
- 24 - 

of facts. The hearing officer's assessment was based on Johnson's 

statements in this case that were made while the hearing officer 

was functioning in at least a semi-adjudicative capacity. In this 

context, at least, we are hard-pressed to see how consideration of 

even unsworn statements in a credibility determination constitutes 

impermissible prejudging of the merits. 

ii. 

 Johnson separately claims that the hearing officer 

inappropriately considered her preference for parochial schools in 

evaluating her credibility. Johnson contends that this 

effectively "punished" her preference and violated her First 

Amendment rights to harbor and express that opinion. 

 This argument is utterly without merit. Johnson's bias 

against public schools was certainly relevant to the hearing 

officer's determination, as there was reason to believe that 

Johnson's petition was motivated by a desire to place N.S. in a 

parochial school, rather than any actual inadequacies in N.S.'s 

instruction at Horace Mann. Johnson mischaracterizes this issue 

as one of credibility, but Johnson's credibility has nothing to do 

with the ultimate issue of whether N.S. was properly provided with 

a FAPE. Nor is there any evidence that Johnson was "punished" for 

her preference. The hearing officer did not ultimately rule 

against Johnson because of her bias against public schools, but 
- 25 - 

because she found that the quality of N.S.'s education met the 

standard for a FAPE in the least restrictive setting. 

D. 

 In her final challenge, Johnson contends generally that 

N.S.'s educational progress was not sufficient to provide him with 

a FAPE. In support of this argument, she contends that the Supreme 

Court's recent decision in Endrew F., 137 S. Ct. 988, raised the 

bar for evaluating the adequacy of the IEPs offered to disabled 

students, such that the case should be remanded to the district 

court for evaluation under the new standard. 

 At the outset, we disagree with Johnson's premise that 

Endrew F. altered the standard to be applied here. In that case, 

a unanimous Court held that the standard applied below, upholding 

an IEP so long as it was "calculated to confer an 'educational 

benefit [that is] merely . . . more than de minimis[,]'" was 

insufficient to satisfy the substantive requirements of the IDEA. 

137 S. Ct. at 997 (quoting Endrew F. ex rel. Joseph F. v. Douglas 

Cty. Sch. Dist. RE-1, 798 F.3d 1329, 1338 (10th Cir. 2015)) (first 

two alterations in original). Instead, the Court concluded that 

"[t]he IDEA demands . . . . an educational program reasonably 

calculated to enable a child to make progress appropriate in light 

of the child's circumstances." Endrew F., 137 S. Ct. at 1001. 

 In our view, the standard applied in this circuit 

comports with that dictated by Endrew F. This court has announced 
- 26 - 

that, "to comply with the IDEA, an IEP must be reasonably 

calculated to confer a meaningful educational benefit," and 

emphasized that this requires consideration of the individual 

child's circumstances.14 D.B., 675 F.3d at 34 ("An IEP must be 

'individually designed' . . . and must include, 'at a bare minimum, 

the child's present level of educational attainment, the shortand long-term goals for his or her education, objective criteria 

with which to measure progress toward these goals, and the specific 

services to be offered.'" (internal citations omitted)). The 

district court (and the BSEA before it) relied on this standard. 

See Johnson, 201 F. Supp. 3d at 191-92. Given the lack of any 

evident discrepancy between the standard applied in this circuit 

(and in this case) and that announced by Endrew F., we see no 

reason to remand the case for further evaluation. 

 It remains only for us to decide whether, viewed against 

the record as a whole, the district court's conclusion that the 

IEPs were adequate was clear error. See Lessard I, 518 F.3d at 

24. In reaching that determination, the district court canvassed 

the record and noted the objective indicia of N.S.'s advancement 

 14 In D.B., this court cited the Second Circuit's standard for 

evaluating the substance of IEPs to elucidate the requirements 

imposed by this circuit. 675 F.3d at 34-35 (citing D.F. ex rel. 

N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598 (2d Cir. 2005)). 

We note that the Second Circuit recently upheld that standard as 

consistent with Endrew F. See Mr. P v. W. Hartford Bd. of Educ., 

885 F.3d 735, 757 (2d Cir. 2018). 
- 27 - 

as he moved from a substantial inability to communicate or 

understand spoken or signed language to gradually signing, 

vocalizing, and demonstrating comprehension of other linguistic 

concepts. That opinion, and the preceding BSEA decision, also 

noted the consistent recommendation by medical experts and 

educators that N.S. receive education in both spoken and sign 

language, with the hearing officer placing particular emphasis on 

evaluations through this period indicating that N.S.'s 

communication using sign-supported spoken English considerably 

outpaced his abilities in spoken English alone. Finally, the 

district court noted that N.S.'s education at READS, which Johnson 

approved of, used the same methodologies urged by the challenged 

IEPs and made available at Horace Mann. Based on these findings, 

the district court concluded that the challenged plans were 

sufficient to provide N.S. with a FAPE. 

 We see no clear error in this determination. The facts 

in the record are certainly sufficient to support the conclusion 

that N.S. in fact made meaningful educational progress under the 

educational methodology proposed by the IEPs and employed in Horace 

Mann. Evidence from evaluations during this period demonstrate 

that N.S. made meaningful linguistic advancements, particularly 

when using both sign and spoken language, and it is reasonable to 

conclude that an IEP offering a similar program would allow him to 

continue this development. See D.B., 675 F.3d at 38 (permissible 
- 28 - 

to conclude that, "since [] previous IEPs had conferred meaningful 

educational benefits, [a similar future] IEP was reasonably 

calculated to do the same, having kept in place, and even 

supplemented, the services offered by previous IEPs."). As the 

district court correctly noted, this conclusion is further 

supported by evidence submitted by Johnson showing that N.S.'s 

linguistic skillset continued to progress at READS while using a 

"similar methodological model and . . . student-teacher ratio" to 

that available at Horace Mann. Johnson, 201 F. Supp. 3d at 202. 

 Johnson fails to point us to any evidence in the record 

that contradicts the district court's finding, much less any 

indication that it is unsupportable considering the record as a 

whole.15 Instead, she focuses on statements by the BSEA and the 

district court characterizing N.S.'s progress as "slow" and his 

linguistic skills as "significantly delayed." To the extent that 

Johnson implies that "slow" progress is, in and of itself, 

insufficient to constitute a "meaningful educational benefit," we 

cannot agree. Instead, the relationship between speed of 

advancement and the educational benefit must be viewed in light of 

 15 The only specific facts to which Johnson does point are an 

apparent regression in N.S.'s language skills between January and 

October 2014. She does not, however, indicate how this backsliding 

demonstrates the insufficiency of any of the IEPs. In our view, 

that evidence is consistent with just the opposite conclusion: 

N.S.'s regression occurred during the period in which he was not 

attending Horace Mann and thus not following the proposed IEP 

covering that period. 
- 29 - 

a child's individual circumstances. See Endrew F., 137 S. Ct. at 

1001 ("[T]he IDEA demands . . . . an educational program reasonably 

calculated to enable a child to make progress appropriate in light 

of the child's circumstances."); see also Lessard I, 518 F.3d at 

29 ("[W]hile the reported progress is modest by most standards, it 

is reasonable in the context of [the student's] manifold 

disabilities . . . ."). Like the hearing officer before it, the 

district court thoroughly reviewed the record and concluded that 

the speed of N.S.'s advancement under the IEP-proposed educational 

methodology was appropriate considering, among other factors, his 

starting point and Johnson's own resistance to educating N.S. in 

ASL and spoken English. Again, we see this conclusion as entirely 

supportable within the record, and so find no basis on which to 

reverse the district court's conclusion. 

III. 

 For the reasons set forth above, we affirm the district 

court's grant of summary judgment.