* Hon. Betty B. Fletcher, of the N inth Circu it, sitting by

designation. 

# Un ited Sta tes C our t of A pp eals

For the First C ircuit No. 02-1005 SUSAN RAFFERTY, individually and as parent

and natural guardian of EMILY RAFFERTY, a minor,

Plaintiff, Appellant,

v. CRANSTON PUBLIC SCHOOL COMMITTEE; ROBERT MATTIS, individually and in his official capacity as Special Education Director; JOSEPH HERBOLD, individually and in his official capacity as Director of Guidance; and PETER MCWALTERS, individually and in his official capacity as Commissioner of the Rhode Island Department of Education, Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Mary M. Lisi, U.S. District Judge ]

Before Torruella, Circuit Judge , B. Fletcher, * Senior Circuit Judge , Stahl, Senior Circuit Judge . Melissa F. Weber , for appellant. GregoryP. Piccirilli , with whom Sciacca & Piccirilli , was on brief, for appellees Cranston Publi c School Committee, Robert Mattis and Joseph Herbold. Anne T. Turi lli , Special Assistant Attorney General, R.I. Department of Attorney General, with whom Sheldon W hi tehouse , Attorney General, were on brief, for appellee Peter McWalters.

December 24, 20021 Except for one § 1983 claim filed against McWalters solely in

his official capacity, Rafferty brings suit against the defendants in their individual and official capacities. -2- TORRUELLA, Circuit Judge . Plaintiff-appellant, Susan Rafferty("Rafferty"), brings this appeal on behalf of herself and her child, Emily Rafferty ("Emily"). Rafferty appeals the district court's summary judg ment order in favor of defendants-appellees, the Cranston Public School Committee; Robe rt Mattis, the Special Education Director; Joseph Herbold, the Director of Guidance; and Peter McWalters, the Commissioner of the Rhode IslandDepartment of Education, as to her claims that defendants viol atedthe Individuals with Disabilities Act ("IDEA"), 2 0 U .S.C. § 1400 et seq. , and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. 1 In addition, Rafferty appeals the district co urt' s order granting McWalter's motion for judgment on the pleadings as to her procedural due pro cess claims under 42 U.S.C. § 1983. For the reasons stated below, we affirm. I. Background On May 19, 1994, at the end of Emily's second grade year, the Cranston Public Schools (the "District") evaluated her reading ability and identified her as a disabled child in need of special education services under IDEA. As r equire d by IDEA, District personnel created an Individualized Education Program ("IEP") for Emily, which recommended that she remain in a mainstreamclassroom with non-disabled students and receive approximately three hours a-3-

week of additional reading assistance. See 20 U.S.C. § 1414(d) (1)(A). Following her fifth grade year, Emily's IEP stated that she read at a third grade level, but it failed to include a statement of Emily's present education level, as required by IDEA. 20 U.S.C. § 1414(d)(1)(A)(i). At the end of E mily' s sixth grade year, her IEP failed to indicate her specific reading level or include a statement of annual goals. Id. § 1414(d)(1)(A)(i)-(11). Throughout her years in the District, Emily had poor a ttendance, andin the seventh grade, the middle school principal asked Raffertyto provide the school with a letter from Emily's doctor explaining her absences. The letter stated that Emily's absences

were due to a significant family disruption. Apparently, the Raffertys were having marital difficulties, and Rafferty had been diagnosed with cancer. Emily's school agreed to provide her with tutoring to help her transition back to school fol low ing her

numerous absences. From approxi mately the middle of March until June of 1999, Emily attended tutoring provided by her school. On June 10, 199 9, th e school held an IEP meeting to discuss Emily's upcoming school year. Emily's fat her at tended the meeting alone and signed the IEP.

During the summer of 1999, Emily vacationed at her aunt's house in Kentucky. In June of 1999, Raff erty completed a parent questionnaire for the Langsf o rd Reading Center ("Langsford") in-4-

Kentucky, and Langsfordpersonnel evaluated Emily on July 15, 1999. Four days before classes began at the District, Rafferty informed the District that Emily would be attending Langsford. From September to December of 1999, Emily received reading tutoring at Langsford. Following her attendance at the reading center, Emily matriculated at St. Francis, a private school in Kentucky.

On November 19, 1999, while Emily was still in Kentucky, Raffertyrequested an IEP meeting. The District denied the request, stating that Emily was no longer enrolled in the District. Then, in January of 2000, Rafferty requested a due process hearing under IDEA, claiming that the District failed to give her notice of

an IEP meeting held on May 27, 1999. After Rafferty made the hearing reques t, the District initiated a residency hearing. Although she admitted to livin g in M assachusetts with her mother while recuperating from brain cancer, she argued that their residence had never chan ged. A decision by McWalters, the Commissioner of the Rhode Island Department of Education, stayed a ruling on residency until the local level IDEA hearing officer made

a finding regarding whether Cranston had provided Emily with a Free Appropriate Public Education ("FAPE"). McWalters reas o ned that although there was evidence supporting the District's argument that Emily was sent to Kentucky because Rafferty was ill and unable to

care for her, Rafferty should be gi ven t he opportunity to argue that she sent Emilyto Kentucky because the District hadfailed to-5-

provide a FAPE, a showing that potentially could entitle Rafferty to reimbursement for the private school tuition.

The hearing officer determined that Emily's 1998 and 1999 IEPs were inadequate and inappropriate. Crucially though, the hearing officer also determined that Langsford was an inappropriate placement because it was a reading clinic rather than a school. Co ns equently, he denied private school reimbursement and only awardedRafferty attorney fees. Both parties appealed the hearing officer's decision to a Department of Education review officer. The review officer upheld the finding that the District did not err when it refused to give Rafferty an IEP meeting after November 19, 1999 because Emily was living in Kentucky. In addition, the officer upheld the denial of tuition reimbursement because Rafferty didnot notify the school at least 10 days prior to removing Emily fromschool, and Langsford didnot constitute the least restrictive environment to which Rafferty could have sent Emily. Finally, the review officer reversed the hearing officer's decision to award attorney fees to plaintiff's counsel.

Raffertythen filed a complaint in t he U nited States District Court for the District of Rhode Island. She claimed that the defen dants violated her and Emily's rights under IDEA and engagedin prohibited retaliation against her because she requested

a due process hearing. The district court adopted the detailed report andrecommendation of the magistrate judge, granting-6-

defend ants' motion for judgment on the pleadings with respect to the § 1983 claim against McWalters and granting summary judgment in favor of defendants as to all other claims. II. Standard of Review We review grants of summary judgment and dis miss als on the pleadings de novo. Rose v. Yeaw , 214 F.3d 206, 209 (1st Cir. 2000); United States v. U.S. Currency, $81,000.00 , 189 F.3d 28, 33 (1st Cir. 1999). Although we need not defer to the district court,

we still must give "due weight" to the administrative record by using an intermediate standard of review. Bd. of Educ. v. Rowley , 458 U.S. 176, 206 (1982). This standard"requires a more critical appraisal of the agency determination than clear- er ror review entails, but which, nevertheless, falls well short of complete de

novo review." Lenn v. Portland Sch. Comm. , 998 F.2d 1 083, 1086 (1st Cir. 1993). "While the court must recognize the expertise of

an administrative agency, as well as that of school officials, and consider carefully administrative findings, the precise degree of deference due such a finding is ultimately 'left to the discretion of the [examining] court.'" G.D. v. Westmoreland Sch. Dist. , 930 F.2d 942, 946 (1st Cir. 1991) (citation omitted). III. Waiver of Claims Not Raised at Due Process Hearing Raffertyargues that the district court s hould have consideredher claims that the District failed to provide adequate notice of procedural safeguards, as required by 20 U.S.C. § 14152 There may be a third claimthat Rafferty attempted to bring for

the first time i n f ederal court involving the hearing officer's failure to provide a remedy. We are unable to decipher the nature of this claim, and "[w]e refuse to construct [this] argument[] for her." Weber v. Cranston Sch. Comm. , 212 F.3d 41, 53 (1st Cir. 2000). -7- (d), and that the District denied Raffer ty acc ess to records. 2 However, she did not raise these issues at her due process hearing.

IDEAgives the parent of a disabled child the right to an im part ial due process hearing conducted by the local educational authority, if she is dissatisfied with "any matter relating to the identification, evaluation, or educational placement of [her] child" or feels her child is not receiving a FAPE. 20 U.S.C. § 1415(b)(6), (f)(1). Any aggrieved party can appeal the findings anddecision of the hearing officer to the state edu cat ional agency . Id . § 1415(g). If the parent remains dissatisfied, she

can bring a civil action in federal district court. Id. § 1415 (i)(2). IDEArequires that a plaintiff raise or exhaust claims concerning a disabled child's "edu cational situation" in the due pro cess hearing. Weber v. Cranston Sch. Comm. , 212 F.3 d 41, 4 9 (1st Cir. 2000). Plaintiff can circumvent the exhaustion requirement if she "can show that the agency's adoption of an unlawful general policy or practice would make resort to the agency futile, or that the administrative remedies afforded by subchapter II of IDEA are inadequate given the relief sought." Id. at 52.-8- Raffertycannot meet any of the exceptions to the exhaustion requirement. She has not pointed to any ev ide nce indicating that the agency adopted an unlawf ul gen eral policy or practice. Rafferty refers to records held by the District that

were not turned over to her until a month after her request, but this does not constitute a charge of an unlawful general policy or prac tice by the agency. Further, she cannot show that resort to the hearing was futile because the hearing officer could not have awarded the redress sought. Rafferty's argument on this point is unclear, but she may be claiming that exhaustion was futile because she could not recover monetary damages at the administrative hearing. Recently this Circuit, however, has heldthat "plaintiffs who bring an IDEA-based claim under 42 U.S.C. § 1983, in which they seek only money damages, must exha ust the administrative process available under the IDEA as a condition precedent to entering a state or federal court." Frazier v. Fairhaven Sch. Comm. , 276 F.3d 52, 64 (1st Cir. 2002). Consequently, we hold that Rafferty must complywith the exhaustion requirement, and she is barred from bringing the additional claims she first raised in district court. IV. Reimbursement Denial The hearing officer rejectedRafferty's claim for private school reimbursement because Langsford was not an appr op riate placement and because Rafferty did not provide the Distr ict with notice o f her intention to place Emily in private school. After3 IDEA provides:

(ii) Reimbursement for private school placement. If the parents of a child with a dis abil ity, who previously receivedspecial education andrelatedservices under the authorityof a public agency, enroll the c hild i n a private elementary or secondary school without the consent of or referral by the public agency, a court or a hearing officer mayrequire the agencyto reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment. 20 U.S.C. § 1412(a)(10)(C). -9- examining the record, we find that the preponderance of the evidence supports the hear ing officer's denial of private school reimbursement.

A. Not an Appropriate Placement Under IDEA Where the court or hearing officer finds that the school district did not make a FAPE available to the child in a timely manner, IDEA allows parents to place their disabled child in a private school and receive reimbursement. 3 While reimbursement is not barred because the private school fails to meet the standards of the state educational agency, parents "are entitled to reimbursement only if a federal court concludes both that the public placement violated IDEA and that the private scho ol placement was proper under the Act." Florence County Sch. Dist. Four v. Carter , 510 U.S. 7, 13-15 (1993). "Re imbu rsement is a

ma tter o f equitable relief, committed to the sound discretion of the district court . . . usually reserved for parties who prevail-10-

at the end of the placement dispute." Roland M. v. Concord Sch. Comm. , 910 F.2d 983, 999 (1st Cir. 1990) (citations omitted). As the Supreme Court has stated, "par ents who unilaterally change their child's placement . . . without the consent of state or local school officials, do so at their own financial risk." Sch. Comm. of Burlington v. Dep't of Educ. , 471 U.S. 359, 373-74 (1985).

It is unnecessary to consi der whether the District was providing Emily with a FAPE because Langsford was not an appropriate placement. While a t L angsford, Emily spent four to five hours a day, five days a week alone with a clinician working

on reading. Although the tutoring did improve her reading ability, she did not studyanyother subjects, such as social studies, math, English, or science. "'Mainstreaming may not be ignored, even to fulfill substantive educational criteria.'" Rome Sch. Comm. v. Mrs. B. , 247 F.3d 29, 33 (1st Cir. 2001) (quoting Roland M. , 910 F.2dat 992-93). Even if the child makes academic progress at the private school, "that fact does not establish that such a placement comprises the requisite adequate and appropriate education." Id. (i nter nal quotation marks omitted). Therefore, we reject Rafferty's argument -- that a parent ca n seek any alternative school she wishe s i f the public school education is inadequate. See Florence County , 510 U.S. at 11 (stating that a private school pla cem ent must be "reasonably calculated to enable the child to receive educational benefits") (citation omitted)). The h eari ng4 Rafferty makes a related claim that the district court erre d

when it denied Rafferty private school reimbursement while excusing the defendants from other procedural violations because it "undercuts fundamental Constitutional principles of fairness." It appears that Rafferty is referring to McWalter's gra nt of an extension to the hearing officer to render his decision. A review of the record does not reveal tha t th is statutorily-sanctioned extension caused Rafferty any harm. 34 C.F.R. § 300.511(c); see Amann v . Stow Sch. Sys. , 982 F.2d 644, 653 (1st Cir. 1992) (rejecting a procedural challenge to a tardily issued opinion because the delay did not cause harm).

5 IDEA does not require parents to meet the notice requirement, if one of the following exceptions applies: (I) the parent is illiterate and cannot write in English; (II) compliance with clause (iii)(I) would likely result -11- offi cer' s determination that the reading clinic was not an appropriate placement was amply supported by evidence that Emily was not in a mainstream classroom and did not receive instruction in major subject areas.

B. Ten Day Notice Requirement IDEArequires that at least ten business d ays pr ior to the removal of the child from public school, a parent provide written notice that she is rejecting the placement proposed in the IEP and enrolling the child in private school at public expense. 20 U.S.C. § 1412(a)(10)(C)(iii). Rafferty claims that she missed the deadline because she was ill with cancer. 4 The hearing officer rejectedthis argument because it does not fit under the exceptions to IDEA's notice re qui rements, and because at the time Rafferty says she was too ill to give notice to the District, she completed

a detailed application for Langsford. 5 While the ability ofin physical or serious emotional harm to the child;

(III) the school prevented the parent from providing such notice; or (IV) the parents had not received notice, pursuant to section 1415 of this title, of the notice requirement in clause (iii)(I). 20 U.S.C. § 1412 (a)(10)(c)(iv).

6 Section 504 of the Rehabilitation Act of 1973 provides that "[n]o otherwise qualified individual with a disability in the United States, as defined by 706(20) of this title, shall, solely byreason of her or his disability . . . be subjected to discrimination under any progra m or activity receiving Federal financial assistance . . . . 29 U.S.C. § 794(a). Congress amended the Rehabilitation Act to incorporate the "remedies , pr ocedures, andrights set forth in title VI of the Civil Rights Act of 1964." -12- Raffer tyto comply with the notice requirement is disputable, we will not upset the hearing officer's finding becau se it is supported by sufficient evidence. While there is evidence on the recordthat Rafferty could take care of her affairs, such as Rafferty's completion of the Lang sford questionnaire, there is insufficient countervailing evidence that her illness le ft he r unable to inform the District that she was removing Emily from the District and placing her in private school because the District had not provided a FAPE. Accordingly, we conclude that the hearing officer did not err when he denied Rafferty tuition reimbursement. V. Retaliation Claim Raffertyclaims that the District retaliatedagainst her in violation of section 504 of the Rehabilitation Act when it conveneda residency hearing following her request for a du e proc ess hearing. 6 We find that the preponderance of the evidence34 C.F.R. section 104.61 (1999); Weber , 212 F.3d at 48 (citation

omitted). The pertinent regulation provides that "[n]o recipient or other person shall intimidate, threaten, coerce, or discriminate against individual . . . because he has made a complaint, testified, assisted, or participated in any mann er i n an investigation, proceeding or hearing under this part." 34 C.F.R. 100.7(e) (1999). -13- suppor ts the hearing officer's finding that the District did not

convene the residency hearing in retaliation. The District had an obvious, non-retaliatory reason to initiate the residency hearing: theyhad several indications that Rafferty and Emily were no longer living in the state. In the due process hearing, Rafferty claimed that the District was required to provide her with an IEP meeting. Howe ver, she would only have been entitled to a meeting if Emily was a resident of Cranston, Rhode Island.

At the time Rafferty sought a due process hearing, school personnel were aware that Rafferty was living in Massachusetts and Emilywas living with relatives in Kentucky, providing the District with substantial reason to question Emily's residency. The evid ence heavily favors the hearing officer's finding that the District did not convene a residency hearing in retaliation for the due process hearing, and Rafferty does not offer any support for a contraryinterpretation of the facts. Consequently, we affirm dismissal of Rafferty's retaliation claims. VI. Section 1983 Claim Raffertyappeals the district court's Rule 12(c) dismissal of her § 1983 claim against McWalters. She pursues her-14-

claimagainst McWalters in his official capacity as Commissioner of the Rhode Island Department of Educa tion and seeks only money damages. As we have said before, "it is well settled that neither

a state agency nor a state official acting in his official capacity maybe sued for damages in a sec tion 1983 action." Wang v. N.H. Bd. of Registration in Med. , 55 F.3d 698, 700 (1st Cir. 1995) (citation omitted). Consequently, we affirm the dismissal of Rafferty's claim against McWalters. VII. Conclusion For the foregoing reasons, we affirm the judgment of the district court granting summary judgment as to all defendants and granting judgment on the pleadings with respect to p lain tiff's § 1983 claim against McWalters. No costs awarded.

Affirmed .