* Hon. Betty B. Fletcher, of the Ninth Circuit, sitting by

designation.

United States Court of Appeals

For the First Circuit

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.

Gregory P. Piccirilli, with whom Sciacca & Piccirilli, was on

brief, for appellees Cranston Public School Committee, Robert

Mattis and Joseph Herbold.

Anne T. Turilli, Special Assistant Attorney General, R.I.

Department of Attorney General, with whom Sheldon Whitehouse,

Attorney General, were on brief, for appellee Peter McWalters.

December 24, 2002
1 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.

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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 judgment order in favor of defendants-appellees,

the Cranston Public School Committee; Robert Mattis, the Special

Education Director; Joseph Herbold, the Director of Guidance; and

Peter McWalters, the Commissioner of the Rhode Island Department of

Education, as to her claims that defendants violated the

Individuals with Disabilities Act ("IDEA"), 20 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 court's order

granting McWalter's motion for judgment on the pleadings as to her

procedural due process 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 required by IDEA, District

personnel created an Individualized Education Program ("IEP") for

Emily, which recommended that she remain in a mainstream classroom

with non-disabled students and receive approximately three hours a
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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 Emily'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 attendance,

and in the seventh grade, the middle school principal asked

Rafferty to 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 following her

numerous absences. From approximately the middle of March until

June of 1999, Emily attended tutoring provided by her school. On

June 10, 1999, the school held an IEP meeting to discuss Emily's

upcoming school year. Emily's father attended 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, Rafferty completed a parent

questionnaire for the Langsford Reading Center ("Langsford") in
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Kentucky, and Langsford personnel 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,

Rafferty requested 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 request, the District initiated a residency hearing.

Although she admitted to living in Massachusetts with her mother

while recuperating from brain cancer, she argued that their

residence had never changed. 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 reasoned 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 given the opportunity to argue

that she sent Emily to Kentucky because the District had failed to
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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.

Consequently, he denied private school reimbursement and only

awarded Rafferty 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

did not notify the school at least 10 days prior to removing Emily

from school, and Langsford did not 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.

Rafferty then filed a complaint in the United States

District Court for the District of Rhode Island. She claimed that

the defendants violated her and Emily's rights under IDEA and

engaged in prohibited retaliation against her because she requested

a due process hearing. The district court adopted the detailed

report and recommendation of the magistrate judge, granting
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defendants' 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 dismissals 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-error review

entails, but which, nevertheless, falls well short of complete de

novo review." Lenn v. Portland Sch. Comm., 998 F.2d 1083, 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

Rafferty argues that the district court should have

considered her claims that the District failed to provide adequate

notice of procedural safeguards, as required by 20 U.S.C. § 1415
2 There may be a third claim that Rafferty attempted to bring for

the first time in federal 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).

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(d), and that the District denied Rafferty access to records.2

However, she did not raise these issues at her due process hearing.

IDEA gives the parent of a disabled child the right to an

impartial 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

and decision of the hearing officer to the state educational

agency. Id. § 1415(g). If the parent remains dissatisfied, she

can bring a civil action in federal district court. Id. § 1415

(i)(2).

IDEA requires that a plaintiff raise or exhaust claims

concerning a disabled child's "educational situation" in the due

process hearing. Weber v. Cranston Sch. Comm., 212 F.3d 41, 49

(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.
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Rafferty cannot meet any of the exceptions to the

exhaustion requirement. She has not pointed to any evidence

indicating that the agency adopted an unlawful general 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

practice 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 held that "plaintiffs

who bring an IDEA-based claim under 42 U.S.C. § 1983, in which they

seek only money damages, must exhaust 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

comply with the exhaustion requirement, and she is barred from

bringing the additional claims she first raised in district court.

IV. Reimbursement Denial

The hearing officer rejected Rafferty's claim for private

school reimbursement because Langsford was not an appropriate

placement and because Rafferty did not provide the District with

notice of her intention to place Emily in private school. After
3 IDEA provides:

(ii) Reimbursement for private school placement. If the

parents of a child with a disability, who previously

received special education and related services under the

authority of a public agency, enroll the child in a

private elementary or secondary school without the

consent of or referral by the public agency, a court or

a hearing officer may require the agency to 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).

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examining the record, we find that the preponderance of the

evidence supports the hearing 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 school

placement was proper under the Act." Florence County Sch. Dist.

Four v. Carter, 510 U.S. 7, 13-15 (1993). "Reimbursement is a

matter of equitable relief, committed to the sound discretion of

the district court . . . usually reserved for parties who prevail
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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, "parents 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 consider whether the District was

providing Emily with a FAPE because Langsford was not an

appropriate placement. While at Langsford, 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 study any other 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.2d at 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.

(internal quotation marks omitted). Therefore, we reject

Rafferty's argument -- that a parent can seek any alternative

school she wishes if the public school education is inadequate.

See Florence County, 510 U.S. at 11 (stating that a private school

placement must be "reasonably calculated to enable the child to

receive educational benefits") (citation omitted)). The hearing
4 Rafferty makes a related claim that the district court erred

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 grant of an

extension to the hearing officer to render his decision. A review

of the record does not reveal that this 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

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officer'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

IDEA requires that at least ten business days prior 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

rejected this argument because it does not fit under the exceptions

to IDEA's notice requirements, 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 of
in 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

by reason of her or his disability . . . be subjected to

discrimination under any program or activity receiving Federal

financial assistance . . . . 29 U.S.C. § 794(a). Congress amended

the Rehabilitation Act to incorporate the "remedies, procedures,

and rights set forth in title VI of the Civil Rights Act of 1964."

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Rafferty to comply with the notice requirement is disputable, we

will not upset the hearing officer's finding because it is

supported by sufficient evidence. While there is evidence on the

record that Rafferty could take care of her affairs, such as

Rafferty's completion of the Langsford questionnaire, there is

insufficient countervailing evidence that her illness left her

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

Rafferty claims that the District retaliated against her

in violation of section 504 of the Rehabilitation Act when it

convened a residency hearing following her request for a due

process hearing.6 We find that the preponderance of the evidence
34 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 manner in an

investigation, proceeding or hearing under this part." 34 C.F.R.

100.7(e) (1999).

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supports 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:

they had 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.

However, 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

Emily was living with relatives in Kentucky, providing the District

with substantial reason to question Emily's residency. The

evidence 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

contrary interpretation of the facts. Consequently, we affirm

dismissal of Rafferty's retaliation claims.

VI. Section 1983 Claim

Rafferty appeals the district court's Rule 12(c)

dismissal of her § 1983 claim against McWalters. She pursues her
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claim against McWalters in his official capacity as Commissioner of

the Rhode Island Department of Education 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

may be sued for damages in a section 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 plaintiff's

§ 1983 claim against McWalters. No costs awarded.

Affirmed.