a minor, by and through her Parent and Next Friend, W.
D. Blackmon; W. D. Blackmon; Julie Blackmon, Appellees,
Springfield R-XII School District,
Springfield, MO, and it's Board of Education, Appellant.
Missouri Council of Administrators of
Special Education, Amicus Curiae on Behalf of Appellant; Misssouri
for Families for Effective Autism Treatment, St. Louis Learning Disabilities
Association, Amici Curiae on Behalf of Appellees.
Before McMILLIAN and Murphy, Circuit
Judges, and Tunheim, District Judge.1
The opinion of the court was delivered
by: Tunheim, District Judge.
Appeals from the United States District
Court for the Western District of Missouri.
Submitted: September 17, 1999
Decision: December 2, 1999
Grace Blackmon ("Grace") brought claims
against the School District of Springfield, R-12 (the "School District")
under the Individuals with Disabilities Education Act, 20 U.S.C. §§
1400 et seq. (the "IDEA"), *fn2 alleging that the individual education
program ("IEP") offered to her by the School District was not reasonably
calculated to provide her with a free, appropriate, public education.
Grace's parents requested an impartial due process hearing for a determination
of their claims pursuant to 20 U.S.C. § 1415(f). The administrative
hearing panel determined that the IEP offered to Grace was appropriate,
and further determined that the alternative IEP advocated by Grace's
parents was inappropriate. The hearing panel also found that the School
District committed no procedural violations in developing an IEP for
Grace. Grace's parents appealed the hearing panel's decision to the
United States District Court for the Western District of Missouri.
The district court reversed the hearing panel's determinations on
December 4, 1998 and ordered the School District to reimburse Grace's
parents for their expenses in educating her. By Order dated January
6, 1999, the district court further awarded attorney's fees to Grace
and her parents. The School District appeals from both of the district
court's orders. We reverse.
Grace is a minor child born July 12,
1993 who at all times relevant to these proceedings resided within
the jurisdictional boundaries of the School District. Physicians have
diagnosed Grace as suffering from a severe, diffuse, bilateral brain
injury with hypotonic and autistic behaviors. The School District
does not dispute that Grace is developmentally disabled and thus entitled
to the protections and benefits of the IDEA.
When Grace was approximately fifteen
months old, her parents enrolled her in a program designed to evaluate
and treat her disabilities called the "First Steps" program. The "First
Steps" program is operated by the Springfield Regional Center, a division
of the Department of Mental Health, and is not in any way affiliated
with the School District. Under this program Grace received speech
and occupational therapy for four to five months, and received physical
therapy for approximately ten months. Grace's parent's describe the
program's approach as "traditional." Although Grace showed no significant
improvement in fine motor skills based on the four to five months
of occupational therapy she received, she made improvements in other
areas, including significant progress in her gross motor skills.
Grace's parents were dissatisfied with
her progress in the First Steps program and discontinued her enrollment
on September 6, 1995. They thereafter enrolled her in an alternative
program that they had been researching that is promoted by an organization
called the Institutes for the Achievement of Human Potential (the
"Institutes"). The Institutes advocates
an intensive, home-based training program requiring individualized
therapy taught by a child's parents for twelve hours per day. The
Institutes's program centers around the theory that stimulation of
the brain, by repetitious activity and increased supplies of oxygen
and carbon dioxide, will facilitate its growth. The Institutes's methodology
is controversial and has been criticized in a number of medical journals.
In order to enroll Grace in the program
her parents traveled with her to Philadelphia where the Institutes
is located. The Institutes conducted an evaluation of Grace and provided
her parents with a plan for her development. The program requires
Grace's parents to keep detailed records of her daily activities,
and to travel to Philadelphia for an assessment once every six months.
Between visits, Grace's parents provide her with individualized therapy
for twelve hours per day based on techniques they have learned through
the Institutes's literature and through training provided to them
during visits to Philadelphia. Grace's communication and gross motor
skills have improved significantly during her treatment under the
Institutes's program, and her parents are satisfied with her progress.
When Grace was three years old, and thus
old enough to receive benefits under the IDEA, her parents contacted
the School District and requested that it pay for the cost of training
her under the Institutes's program. The School District informed them
that it would need to evaluate Grace before making a determination
regarding her education placement. The School District thereafter
scheduled an evaluation for Grace and provided her parents with a
copy of the procedural safeguards for parents and children set forth
under the IDEA, as required by 20 U.S.C. § 1415(d). The School
District put together a team of six employees who evaluated Grace
and observed her on two separate occasions. The evaluation included
standardized testing, observing Grace at school and in the home for
several hours, a review of Grace's medical records and other documents
provided to the school by Grace's parents, and interviews with Grace's
parents. At the conclusion of the evaluation process, the School District
produced a twenty-five page "diagnostic summary" of Grace's health,
skills and abilities. Although Grace's parents disagreed with parts
of the diagnostic summary, and although they were aware of their statutory
right to request an independent evaluation of Grace, see 20 U.S.C.
§ 1415(b)(1), they did not seek an independent evaluation or
request that the School District otherwise reevaluate her.
After completing Grace's diagnostic summary,
the School District held a conference with her parents to review the
diagnostic summary and to develop an IEP for her. Grace's parents
and five School District employees attended the conference, which
was held on December 10, 1996. Prior to the meeting, the School District
prepared a proposed IEP for Grace with sections pertaining to Grace's
"present level of performance" and "goals and objectives" tentatively
completed. At the meeting, the School District went through each of
these sections item-by-item with Grace's parents and asked them whether
they agreed with the proposed statements. Grace's parents in general
indicated their agreement.
The School District then engaged in a
discussion with Grace's parents about her appropriate placement. The
School District indicated that it recommend Grace be placed in a "reverse
mainstream" classroom *fn3 and that she additionally receive individualized
speech, occupational and physical therapies. In addition to this option,
the School District also discussed with Grace's parents the possibility
that the School District would provide Grace with in-home individualized
training, as well as the proposal that Grace's parents advocated,
namely, that the School District reimburse them for Grace's in-home
training through the Institutes. The School District nevertheless
rejected these options because they would not provide Grace with the
ability to interact with other children.
When Grace's parents learned of the School
District's recommendation they became upset and left the IEP meeting
before a discussion of Grace's placement could be completed. In a
letter to the School District dated December 25, 1996, Grace's parents
revealed that they were upset because the School District did not
recommend the Institutes's program, stating:
[W]e thought the evaluators
were simply going through the formalities before announcing that
they thought our work with the Institutes was the ideal educational
plan for Grace and we had their total support. . . . So, when the
evaluators recommended the same program (we're pretty confident
of this) for Grace they would have recommended before ever meeting
us, we were totally outraged (and still are). (Appellant's App.,
The School District provided Grace's parents
with a written statement on December 11, 1996 confirming its decision
to offer Grace education in a reverse mainstream classroom along with
individualized speech, occupational and physical therapies. The School
District further provided Grace's parents with another notice of the
procedural safeguards under the IDEA. Subsequent efforts to resolve
the differences between the School District and Grace's parents were
unsuccessful. On December 20, 1996, the School District held an informal
resolution conference with Grace's parents at its administrative offices
that did not result in an agreement between the parties.
On January 3, 1997, Grace's parents exercised
their rights under the IDEA to request an impartial due process hearing.
In accord with Missouri state law, Mo. Rev. Stat. § 162.961,
the hearing panel was comprised of three individuals with knowledge
or training involving children with disabilities. Under the terms
of the Missouri statute, the School District selected one member,
Grace's parents selected another member, and the Missouri Department
of Elementary and Secondary Education appointed an attorney to serve
as the chairperson. Separate counsel represented both the School District
and Grace's parents at the hearing, and both parties submitted expert
testimony and other evidence for the panel's consideration.
During the due process hearing, Grace's
parents raised as issues for the hearing panel's consideration whether
the School District's proposed IEP met the requirements of the IDEA,
whether their alternative IEP met the requirements of the IDEA, the
amount that the School District should be required to reimburse them
for Grace's education, if any, and whether the School District should
pay the attorney's fees that they had expended. Grace's parents did
not challenge the School District's compliance with the IDEA's procedural
requirements. Indeed, their attorney explicitly volunteered:
I want to say to you gentlemen
that the parents through their counsel has [sic] told the School
District that they do not want this panel to decide this matter
in favor of their child because of the School District's procedural
violations, rather they want the decision based upon the merits
of the IEPs put before them.
Later, counsel for the School District directly
asked counsel for Grace's parents, if he did not intend to raise procedural
issues in the case, whether he intended on behalf of Grace's parents
to waive any violations that he perceived to exist. Counsel for Grace's
parents responded, "I will." Based on these statements, the hearing
panel determined that Grace's parents had waived any procedural violations
that might exist. The hearing panel further determined that Grace's
parents had presented no evidence of procedural violations. The hearing
panel issued its decision against Grace's parents and in favor of the
School District on all issues on September 12, 1997.
II. Standard of Review
The IDEA permits aggrieved parties to
seek review of an administrative hearing panel's decision by bringing
a civil action in federal district court. See 20 U.S.C. § 1415(i)(2)(A).
On review, the district court must take into consideration not only
the records of the administrative proceedings, but also any additional
evidence submitted by the parties. See 20 U.S.C. § 1415(i)(2)(B).
While the district court should make an independent determination
of the issues based on a "preponderance of the evidence," 20 U.S.C.
§ 1415(i)(2)(B)(iii), the Supreme Court has emphasized that the
district court must afford the administrative proceedings "due weight."
Board of Educ. v. Rowley, 458 U.S. 176, 206 (1982).
The district court's standard of review
is less deferential than that applied under the substantial evidence
test that courts ordinarily apply in federal administrative law cases,
however, a district court must give consideration "to the fact that
the state hearing panel has had the opportunity to observe the demeanor
of the witnesses." Fort Zumwalt Sch. Dist. v. Clynes, 119 F.3d
607, 610 (8 th Cir. 1997), cert. denied, 118 S. Ct. 1840 (1998). Moreover,
courts may not "substitute their own notions of sound educational
policy for those of the school authorities which they review." Rowley,
458 U.S. at 206. This is because, as the Rowley court admonished,
"courts lack the 'specialized knowledge and experience' necessary
to resolve 'persistent and difficult questions of educational policy.'"
458 U.S. at 208 (quoting San Antonio Indep. Sch. Dist. v. Rodriguez,
411 U.S. 1, 42 (1973)); see also E.S. v. Independent Sch. Dist.
No. 196, 135 F.3d 566, 569 (8 th Cir. 1998) (stating that judicial
review under the IDEA is limited because "judges are not trained educators").
Whether a school district's IEP complies
with the requirements of the IDEA is a mixed question of fact and
law. See E.S., 135 F.3d at 569. On appeal the standard of review of
the district court's ultimate decision is de novo. See id.; Fort
Zumwalt, 119 F.3d at 611. In the absence of a mistake of law,
we review the district court's determination for clear error. See
E.S., 135 F.3d at 569.
III. Procedural Claims
Grace's parents argued to the district
court that the School District deprived them of their procedural rights
under the IDEA by failing to afford them an opportunity to participate
equally in the development of Grace's IEP at the IEP meeting. The
district court sustained their challenge and reversed the hearing
panel's determination that the School District committed no procedural
violations in handling Grace's claims. In so doing, the court rejected
the School District's argument that Grace waived any existing procedural
claims at the administrative due process hearing. The court acknowledged
that Grace's counsel "did profess to waive 'procedural violations'
in his opening statement at the due process hearing." Nevertheless,
the court noted that in a post-hearing brief Grace's counsel argued
that he did not intend to waive all procedural issues, but only procedural
"technicalities," such as forms of notice, dates, times and places
of the due process proceedings. Upon reviewing the administrative
record the court also found that Grace's parents offered testimony
at the due process hearing regarding the conduct of school district
personnel during the IEP meeting. The court determined that this testimony
was inconsistent with the hearing panel's conclusion that Grace's
parents waived procedural objections to the manner in which the School
District conducted the meeting. We disagree.
It is difficult to imagine how Grace's
counsel could have set forth her parents' intent to waive their procedural
objections more clearly. Counsel's broad declaration that Grace's
parents sought a determination based only on the merits of the proposed
IEPs undermines his post-hoc attempt after the hearing to narrow the
scope of the waiver to matters of a more technical nature. Moreover,
the testimony that Grace's parents presented at the hearing, when
interpreted in light of counsel's explicit waiver, amounts to no more
than background evidence relating to their substantive challenge to
the proposed IEP's. The basic issues that they raised before the hearing
panel for determination did not include a procedural challenge. Thus,
we conclude that Grace's parents did not properly raise at the administrative
level the issue of whether the School District permitted them to participate
sufficiently in the development of her IEP.
This failure is significant, because
under well-established judicial interpretations of the IDEA Grace
had an obligation to exhaust her administrative remedies with regard
to the issues upon which she seeks judicial review. See 20 U.S.C.
§ 1415(i)(2)(A) (stating that a party aggrieved by the due process
hearing panel's decision has the right to bring a civil action "with
respect to the complaint presented"); see also, e.g., Honig v.
Doe, 484 U.S. 305, 326-27 (1988); Independent Sch. Dist. No.
283 v. S.D., 88 F.3d 556, 560 (8th Cir. 1996); Urban v. Jefferson
County Sch. Dist. R-1, 89 F.3d 720, 724 (10 th Cir. 1996); Babicz
v. School Bd., 135 F.3d 1420, 1422 (11th Cir. 1998), cert. denied,
119 S. Ct. 53 (1998); Garro v. Connecticut, 23 F.3d 734, 737
(2nd Cir. 1994); Family & Children's Center, Inc. v. School
City of Mishawaka, 13 F.3d 1052, 1056 (7th Cir. 1994), cert. denied,
513 U.S. 961 (1994); Crocker v. Tennessee Secondary Sch. Athletic
Ass'n, 873 F.2d 933, 935 (6 th Cir. 1989) (interpreting the IDEA's
precursor, the Education of the Handicapped Act).
The exhaustion requirement permits agencies
"to exercise discretion and apply their expertise . . . allow[s] complete
development of the record before judicial review, . . . prevent[s]
parties from circumventing the procedures established by Congress,
and . . . avoid[s] unnecessary judicial decisions by giving the agency
an opportunity to correct errors." See Urban, 89 F.3d at 724.
The Tenth Circuit in Urban applied the exhaustion rule to bar
a claim similar to the challenge raised here, asserting that a school
district violated the IDEA's procedural requirements by failing to
afford a child's parents adequate participation rights in the development
of his IEP. Id.
Because Grace did not properly submit
this claim for the hearing panel's determination, it is barred unless
an exception to the exhaustion rule applies. Courts recognize only
three exceptions to the exhaustion requirement, including futility,
inability of the administrative remedies to provide adequate relief,
and the establishment of an agency policy or practice of general applicability
that is contrary to law. See id. None of these exceptions applies
to Grace's claim against the school district. Grace has offered no
evidence demonstrating that her administrative remedies would have
been futile or inadequate, nor has she shown that the school district
was acting on a general policy of developing IEPs without adequate
parental participation. For these reasons we find that Grace waived
her procedural claim explicitly during the administrative due process
hearing, and furthermore, that she failed to exhaust her administrative
remedies with regard to this claim. Her claim is barred for these
B. Procedural Compliance
Even assuming that Grace's parents had
properly raised their procedural objection to the administrative hearing
panel, the record does not support the district court's conclusion
that the School District's IEP should be set aside on the ground that
it deprived Grace's parents of their procedural rights. Procedural
deficiencies in the development of a child's IEP warrant rejecting
the IEP only if they "compromised the pupil's right to an appropriate
education, seriously hampered the parent's opportunity to participate
in the formulation process, or caused a deprivation of educational
benefits." S.D., 88 F.3d at 562 (internal quotations omitted).
Such circumstances are not present in this case.
Grace's parents concede that the School
District provided them with proper notice of their procedural rights
under the IDEA, that it gave them sufficient opportunities to review
Grace's records, that it provided them with notice of the IEP meeting's
date and purpose, that it invited them to attend that meeting, and
that they signed the IEP, either before or after the meeting, to indicate
their participation in developing it.
They nevertheless assert that the School
District failed to provide them with a meaningful opportunity to participate
in the development of Grace's IEP. They specifically contend that
the School District inappropriately drafted Grace's IEP in their absence,
that they did not subjectively understand the purpose of the IEP meeting,
and that the School District imposed its proposal on them at the IEP
meeting as passive listeners without soliciting their input.
The record does not support reversing
the hearing panel's decision on these grounds. The fact that the School
District developed an unfinished draft of Grace's IEP in advance of
the meeting is not cause for concern, as nothing in the IDEA or its
regulations prohibits a school district from coming to an IEP meeting
with tentative recommendations for its development prepared in the
parents' absence. See 34 C.F.R. pt. 300 app. C (stating that although
it is not permissible for an agency to finalize the IEP before the
IEP meeting begins, the agency may come to the meeting prepared with
proposals as long as the parents are informed at the outset that they
are merely recommendations for review and discussion). Moreover, the
record shows that School District personnel reviewed the pre-drafted
"present level of performance" and "goals and objectives" sections
of the IEP with Grace's parents carefully and asked whether they agreed
with the statements contained therein.
Grace's parents argue that they did not
understand that in giving their agreement they were participating
in the development of her IEP. This misunderstanding is unfortunate,
however, Grace's parents have not shown that it was caused by any
wrongdoing on the part of the School District. When, as in this case,
a school district provides parents with proper notice explaining the
purpose of the IEP meeting, the meeting is conducted in a language
that the parents can understand, see 34 C.F.R. § 300.345(e),
the parents are of normal intelligence, and they do not ask questions
or otherwise express their confusion about the proceedings, the school
district's failure to apprehend and rectify that confusion does not
constitute a violation of the IDEA's procedural requirements.
More importantly, the main point of contention
between Grace's parents and the School District arises not from the
development of the "present level of performance" and "goals and objectives"
portions of her IEP, but from the School District's placement recommendation.
Grace's parents admit that they did not attend the IEP meeting with
the expectation that the parties would consider the available options
and develop a plan for Grace together, but rather, with the expectation
that the School District without discussion would agree to reimburse
them for their costs in educating Grace at home through the Institutes's
program. Their disillusionment upon learning that the School District
recommended a different course of action angered them and they abruptly
terminated the meeting before the parties could reach a resolution
to their conflicting proposals. In so doing, Grace's parents truncated
their own procedural right to contribute to the development of her
IEP. The School District cannot be faulted for failing to engage in
an open discussion with Grace's parents about alternative options
for her placement, when the parents themselves refused to participate
in a discussion with the School District at the first hint of disagreement
with the plan they advocated.
A school district's obligation under
the IDEA to permit parental participation in the development of a
child's educational plan should not be trivialized. See Rowley,
458 U.S. at 205-06 ("It seems to us no exaggeration to say that Congress
placed every bit as much emphasis on compliance with procedures giving
parents and guardians a large measure of participation at every stage
of the administrative process . . . as it did upon the measurement
of the resulting IEP against a substantive standard.").
Nevertheless, the IDEA does not require
school districts simply to accede to parents' demands without considering
any suitable alternatives. In this case, the record shows that the
School District considered both the possibility of providing Grace
with in-home instruction and the possibility of reimbursing her parents
for the cost of educating her at home through the Institutes, but
rejected these options on the ground that they would not provide her
with sufficient interaction with other children. The School District's
adherence to this decision does not constitute a procedural violation
of the IDEA simply because it did not grant Grace's parents' request.
For these reasons we agree with the hearing panel's determination
that the School District did not deprive Grace's parents of their
IV. SUBSTANTIVE CLAIMS
A. Burden of Proof
At Grace's administrative due process
hearing the School District had the burden of proving that its proposed
IEP would satisfy the requirements of the IDEA and provide Grace with
a free appropriate public education. See E.S., 135 F.3d at
569. On appeal to the federal courts, however, Grace and her parents
have the burden of proof because they are challenging the outcome
of the administrative hearing panel's decision. See id. In order to
obtain reimbursement for the costs of educating Grace privately through
the Institutes's program, Grace's parents must demonstrate that (1)
the School District's proposed IEP would not have provided Grace with
a free appropriate public education; and (2) the Institutes's program
complied with the IDEA. See Fort Zumwalt, 119 F.3d at 611.
B. The IDEA's Substantive Requirements
School districts that accept federal funds
under the IDEA must provide each qualifying disabled child within
their jurisdictions with a "free, appropriate public education." 20
U.S.C. §§ 1400(d)(1)(A), 1412(a)(1)(A). A school district
must tailor such education to meet the unique needs of each disabled
child, see 20 U.S.C. § 1400(d)(1)(A). A school district addresses
this goal through the development of an IEP for each child setting
forth her present level of performance, annual goals and objectives,
specific services to be provided, an explanation of the extent to
which she will not receive education with nondisabled children, a
statement of modifications to district-wide assessment procedures
needed in order for her to participate in such assessments, transition
services needed, the projected dates and duration of proposed services,
and objective criteria and evaluation procedures. See 20 U.S.C. §
Although the IDEA mandates individualized
"appropriate" education for disabled children, it does not require
a school district to provide a child with the specific educational
placement that her parents prefer. See E.S., 135 F.3d at 569.
Nor does the IDEA require a school district to "either maximize a
student's potential or provide the best possible education at public
expense." Fort Zumwalt, 119 F.3d at 612. The purpose of the
IDEA is "more to open the door of public education to handicapped
children on appropriate terms than to guarantee any particular level
of education once inside." Rowley, 458 U.S. at 192. The IDEA's
requirements thus are satisfied when a school district provides individualized
education and services sufficient to provide disabled children with
"some educational benefit." Id. at 200.
Nonetheless, the IDEA defines the "free
appropriate public education" that a school district must provide
to include instruction and services that meet state educational standards.
See 20 U.S.C. § 1401(8)(B); Rowley, 485 U.S. at 203. When
a state provides for educational benefits exceeding the minimum federal
standards set forth under Rowley, the state standards are thus
enforceable through the IDEA. See Johnson v. Independent Sch. Dist.
No. 4, 921 F.2d 1022, 1029-30 (10th Cir. 1990), cert. denied, 500
U.S. 905 (1991); Burke County Bd. of Educ. v. Denton, 895 F.2d
973, 982-83 (4th Cir. 1990); Board of Educ. of East Windsor Reg'l
Sch. Dist. v. Diamond, 808 F.2d 987, 992 (3rd Cir. 1986); David
D. v. Dartmouth Sch. Comm., 775 F.2d 411, 418 (1st Cir. 1985),
cert. denied, 475 U.S. 1140 (1986). Several courts accordingly have
determined that higher state educational standards are applicable
to a student's IDEA claim brought in that state. See Burke,
895 F.2d at 982-83 (interpreting North Carolina law); Diamond,
808 F.2d at 992 (interpreting New Jersey law); David D., 775
F.2d at 418 (interpreting Massachusetts law). But see O'Toole v.
Olathe Dist. Sch. Unified Sch. Dist. No. 233, 144 F.3d 692, 701
(10th Cir. 1998) (holding that Kansas law does not provide for a heightened
standard); Johnson, 921 F.2d at 1029-30 (holding that Oklahoma
law does not provide for a heightened standard).
Grace's parents argue that Missouri state
law requires school districts to provide instruction and services
sufficient to maximize the capabilities of disabled children. Grace's
parents raise the issue of whether Missouri law establishes a higher
educational standard than the federal standard set forth in Rowley
for the first time on appeal. Although the district court speculated
sua sponte that a higher standard might apply, the court ultimately
declined to resolve the issue and applied the rule set forth in Rowley
to Grace's claims. Because Grace's parents did not properly raise
this issue before the district court and the district court did not
decide it, we decline to consider it for the first time on appeal.
See von Kerssenbrock-Praschma v. Saunders, 121 F.3d 373, 377-78
(8th Cir. 1997) (declining to consider argument regarding standard
of review applicable to Missouri state statute, because district court
did not address it); Barone v. Rich Bros. Interstate Display Fireworks
Co., 25 F.3d 610, 611 n.2 (8th Cir. 1994), cert. denied, 513 U.S.
948 (refusing to consider claim raised for the first time on appeal).
We accordingly address Grace's claims under the Rowley standard.
C. Sufficiency of the School District's
The School District challenges the district
court's determination that its proposed IEP is not reasonably calculated
to offer Grace a free appropriate public education as defined in Rowley.
The School District argues that in reversing the unanimous decision
of the hearing panel, the district court failed to give its findings
"due weight," and instead substituted the court's own notions of sound
educational policy. We agree.
The district court relied heavily on
the results of Grace's therapy through the First Steps Program in
making its determination. The district court noted that both the School
District's proposed program and the First Steps program employed "traditional
therapies." Asserting that Grace benefited minimally from the First
Steps program as compared to her progress in the Institutes's program,
the district court concluded that Grace would be capable of making
only trivial progress under the School District's IEP. Thus, although
Grace never received instruction in the School District's proposed
program, the district court concluded that she could not benefit from
that instruction because she allegedly failed to progress in a completely
separate program utilizing similar methodology.
This analysis is flawed for several reasons.
The district court's conclusion that Grace made little progress in
the First Steps program is of questionable accuracy. The record demonstrates
that although she made little to no progress in developing her fine
motor skills as a participant in this program, her gross motor skills
improved significantly. Moreover, gauging the sufficiency of Grace's
progress in the First Steps program by comparing it to her progress
in the Institutes's program is inappropriate. Under the applicable
standard, the School District must only provide Grace with "some educational
benefit" and need not give her the best education possible. See Rowley,
458 U.S. at 200. Thus, whether Grace's progress in the Institutes's
program would exceed her progress under more traditional therapies
is irrelevant. Furthermore, the two programs are not comparable. As
a participant in the First Steps program Grace received therapy for
only 120 minutes per week, while under the Institutes's program she
received instruction for 12 hours per day. Any increases in Grace's
progress under the Institutes's program therefore could be attributed
solely to the amount of instruction she received. *fn4
Moreover, even assuming that the Grace
made no progress whatsoever in the First Steps program, such a failure
would not be indicative of Grace's potential progress under the School
District's proposed plan. The School District's IEP would have provided
Grace with 720 minutes of instruction per week, in comparison with
the 120 minutes offered to her in the First Steps program. The School
District's program further would have given Grace a kind of classroom
instruction with individualized goals that the First Steps program
did not provide. Also, because the School District's program is not
connected with the First Steps program, Grace would have learned from
different instructors and therapists under the School District's plan
who would have employed different skills and techniques. The only
concrete similarity between the First Steps program and the School
District's IEP is that both programs implemented some of the same
traditional methodologies. In rejecting these "traditional" methods
in favor of the Institutes's techniques, the district court imposed
its own theories of education on the School District and rejected
the significant expertise of school authorities and hearing panel
The court also criticized the School
District on the ground that it based the IEP on an inadequate diagnostic
evaluation of Grace. The district court concluded that the School
District's team of evaluators spent too little time observing Grace,
and that they inaccurately administered one of the tests upon which
Grace's diagnostic summary was based. In making these observations
the district court failed to acknowledge that the School District
notified Grace's parents of their statutory right to request an independent
evaluation of Grace, and that they expressly declined to exercise
that right. Because they chose not to seek a reevaluation of Grace,
they cannot now be heard to complain about the manner in which the
school district evaluated her.
In further support of its decision the
district court credited the testimony of Grace's parents and of expert
witnesses testifying on her behalf, and rejected the contradictory
testimony of the school district's employees and experts. In making
this assessment the district court reviewed a dry record consisting
only of the transcript of Grace's due process hearing, various documents
and exhibits submitted at the hearing, and supplemental deposition
transcripts submitted directly to the district court. Despite the
fact that the district court had no first-hand opportunity to hear
any of the testimony it was evaluating, it found more credible the
expert opinions submitted by Grace's parents because some of the school
district's witnesses were concurrently or previously employed by the
school district, and because others had not had an opportunity to
In so doing, the district court ignored
this Court's admonition in Zumwalt that a district court should
give consideration to "the fact that the state hearing panel has had
the opportunity to observe the demeanor of the witnesses." 119 F.3d
at 610. We find that the district court should have given greater
weight to the hearing panel's decision, and thus credited the testimony
of the school district's experts who testified that the School District's
proposed IEP is reasonably calculated to provide Grace with a free,
appropriate public education. We accordingly reverse the district
D. Sufficiency of the Institutes's
Because we find that the School District's
proposed IEP satisfies the IDEA's substantive requirements, we need
not address the sufficiency of the Institutes's program. See Zumwalt,
119 F.3d at 611 (requiring parents who seek reimbursement for private
placement to prove both that the school district has not offered a
free appropriate public education, and that the private placement
is in compliance with the IDEA).
We nevertheless note that Grace's instruction
through the Institutes fails to satisfy one of the primary objectives
set forth in the IDEA, namely, to educate disabled children in a classroom
along with children who are not disabled to the maximum extent possible.
See 20 U.S.C. § 1412(5)(A); see also Rowley, 458 U.S.
at 202 (noting that the statutory language reflects a "mainstreaming
preference"); S.D., 88 F.3d at 561 (finding that the statutory language
gave rise to a presumption in favor of the defendant's placement in
the public schools). This policy does not mandate placement with non-disabled
children when a child is so severely disabled that such placement
would not provide an educational benefit, see 20 U.S.C. § 1412(5)(A),
however, we have already determined that School District's proposed
placement of Grace in a reverse mainstream classroom would have provided
her with an appropriate education. We accordingly conclude that the
Institutes's program is not in compliance with the IDEA because it
does not offer her an education in the least restrictive environment.
V. Attorney's Fees and Costs
The district court awarded Grace and her
parents their attorney's fees and costs on the ground that they were
the prevailing parties in this action. Because we reverse the district
court's determination of appellee's IDEA claims we also reverse the
district court's award of attorney's fees.
The judgments entered on appellee's IDEA
claim and motion for attorney's fees and costs are reversed, and the
case is remanded to the district court with directions to reinstate
the decision of the administrative hearing panel.
A true copy.
CLERK, U.S. COURT OF APPEALS, EIGHTH
1 The Honorable John R. Tunheim, United
States District Judge for the District of Minnesota, sitting by designation.
2 Congress extensively revised the existing
provisions of the IDEA in June 1997. See Individuals with Disabilities
Education Act Amendments of 1997, Pub. L. No. 105-17, 111 Stat. 37
(1997). Most of the revisions took effect on June 4, 1997, before
Grace and her parents filed their complaint, and a few of them became
effective July 1, 1998, after Grace and her parents initiated this
action but before the district court entered its decision. See id.
§ 201(a). The revisions do not appear materially to affect the
issues raised on appeal.
3 A "reverse mainstream" classroom is
one containing a majority of developmentally disabled children, and
a minority of children with "normal" abilities.
4 Grace's parents concede that the IDEA
does not require the School District to provide Grace with instruction
for twelve hours per day.