and KAREN WALCZAK,
FLORIDA UNION FREE
SCHOOL DISTRICT and MAUREEN FLAHERTY,
Docket No. 97-7155
Decided: April 16, 1998
[CORRECTED COPY, MAY 8, 1998]
B e f o r e: OAKES,
PARKER, Circuit Judges, RAGGI, District Judge.
Appeal from the Order
of Summary Judgment entered by Judge Charles L. Brieant of the
United States District Court for the Southern District of New
York in favor of Robert and Karen Walczak, the parents of a learning
disabled child, who filed suit under the Individuals with Disabilities
Education Act to challenge the adequacy of the education plan
and placement proposed for their daughter by defendants-appellants.
Reversed and Remanded.
MICHAEL H. SUSSMAN,
(SUSSMAN, BERGSTEIN & WOTORSON, 25 Main Street, Goshen, New
York), for Plaintiffs-Appellees.
FREDERICK B. SIMPSON, (AHMUTY, DEMERS & McMANUS, 200 I.U.
Willets Road, Albertson, New York, Frederick B. Simpson, Janice
Berkowitz, and Brendan T. Fitzpatrick on the briefs), for Defendants-Appellants.
RAGGI, District Judge:
At issue in this case
is the 1995-96 educational plan and placement proposed for B.W.,
a learning disabled child.
The Florida Union Free
School District, located in Orange County, New York, and Maureen
Flaherty, its Superintendent of Schools (hereafter collectively
referred to as "the School District"), proposed to educate B.W.
in a day program for the developmentally disabled at the Orange
and Ulster Counties Board of Co operative Education Services ("BOCES").
The child's parents, Robert and Karen Walczak, disagreed with
this placement and independently enrolled their then twelve-year
old daughter in a full-time residential program at Maplebrook,
a nearby private school for the learning disabled. After unsuccessfully
challenging the School District's proposed placement in two administrative
proceedings, the Walczaks filed suit in the Southern District
of New York pursuant to the Individuals with Disabilities Education
Act ("IDEA"), 20 U.S.C. §§ 1401 et seq. (1990 &
Supp. 1998), seeking
(1) a declaration that the BOCES program was inadequate to provide
their child with an appropriate education,
(2) a declaration that
Maplebrook was an appropriate placement, and
of expenses incurred at Maplebrook.
The School District
now appeals from an order of Judge Charles L. Brieant denying
its motion for summary judgment and entering judgment in favor
of the Walczaks. It contends that the district court's finding
that the BOCES program was inadequate to permit B.W. to make meaningful
educational progress is not supported by the extensive record
of administrative proceedings in this case. This court agrees.
Because a preponderance of the evidence establishes the adequacy
of the proposed placement, we reverse the judgment of the district
court and remand the case.
To resolve the issue
presented on this appeal, the court must first review (1) the
basic requirements of IDEA, (2) the means by which New York State
endeavors to comply with these requirements, (3) the individualized
education program ("IEP") for B.W. that is challenged in this
case, and (4) the record of proceedings before the district court.
IDEA is the most recent
Congressional enactment in "an ambitious federal effort to promote
the education of handicapped children." Board of Educ. v. Rowley,
458 U.S. 176, 179 (1982) (interpreting the Education for All Handicapped
Children Act, subsequently amended and renamed IDEA). Toward that
end, Congress provides federal funds to those states that develop
plans to assure "all children with disabilities the right to a
free appropriate public education." 20 U.S.C. § 1412(1);
see Board of Educ. v. Rowley, 458 U.S. at 181. The "free
appropriate public education" mandated by federal law must include
"special education and related services" tailored to meet the
unique needs of a particular child, 20 U.S.C. § 1401(a)(18),
and be "reasonably calculated to enable the child to receive educational
benefits," Board of Educ. v. Rowley, 458 U.S. at 207.
Because the law expresses
a strong preference for children with disabilities to be educated,
"to the maximum extent appropriate," together with their non-
disabled peers, 20 U.S.C. § 1412(5), special education and
related services must be provided in the least restrictive setting
consistent with a child's needs. Only "when the nature or severity"
of a child's disability is such "that education in regular classes
with the use of supplementary aids and services cannot be achieved
satisfactorily" should a child be segregated. Id. In such
cases, instruction may be provided not only in special classrooms
but also "in the home, in hospitals and institutions, and in other
settings." 20 U.S.C. § 1401(a)(16). Indeed, a school board
may be required to place a child in a residential institution
if such a placement is necessary to provide an appropriate education.
See 34 C.F.R. § 300.302 (1998); Mrs. B. v. Milford Bd.
Of Educ., 103 F.3d 1114, 1122 (2d Cir. 1997).
The particular educational
needs of a disabled child and the services required to meet those
needs must be set forth at least annually in a written IEP. See
20 U.S.C. § 1414(a)(5). An IEP must state
(1) the child's present
level of educational performance;
A school official qualified in special
education, the child's teacher, the child's parents, and, where
appropriate, the child, all participate in the development of
an IEP. See id.
(2) the annual goals for the child, including short- term instructional
(3) the specific educational services to be provided to the
child, and the extent to which the child will be able to participate
in regular educational programs;
(4) the transition services needed for a child as he or she
begins to leave a school setting;
(5) the projected initiation date and duration for proposed
(6) objective criteria and evaluation procedures and schedules
for determining, on at least an annual basis, whether instructional
objectives are being achieved. See 20 U.S.C. § 14 01(a)(20).
Parents who are dissatisfied
with a proposed IEP may file a complaint with the state educational
agency. See 20 U.S.C. § 1415(B)(1)(E). Complaints are resolved
through an "impartial due process hearing," 20 U.S.C. § 1415(b)(2),
at which school authorities have the burden of supporting the
proposed IEP, see Matter of the Application of a Handicapped
Child, 22 Educ. Dep't Rep. 487, 489 (1983) ("It is well established
that a board of education has the burden of establishing the appropriateness
of the placement recommended by [the school board]"); see also Application of a Child Suspected of Having a Disability,
N.Y. State Educ. Dep't Appeal No. 93-9 (Mar. 29, 1993); Application
of a Child with a Handicapping Condition, N.Y. State Educ.
Dep't Appeal No. 92-7 (Mar. 5, 1992). A local hearing officer's
decision may be appealed to the state educational agency, see
20 U.S.C. § 1415(c), after which any party still aggrieved
may sue in either state or federal court, see 20 U.S.C. §
1415(e)(2). A court will fashion appropriate relief based on its
assessment of a preponderance of the evidence developed at the
administrative proceedings and any further evidence presented
by the parties. Id.
2. New York's Regulatory
Since New York State
receives federal funds under IDEA, it is obliged to comply with
the requirements of this law. To meet these obligations and to
implement its own policies regarding the education of disabled
children, the State has assigned responsibility for developing
appropriate IEPs to local Committees on Special Education ("CSE"),
the members of which are appointed by school boards or the trustees
of school districts. See N.Y. Educ. Law § 4402(1)(b)(1) (McKinney
Supp. 1997-98); Heldman v. Sobol, 962 F.2d 148, 152 (2d
In developing a particular
child's IEP, a CSE is required to consider four factors: (1) academic
achievement and learning characteristics, (2) social development,
(3) physical development, and (4) managerial or behavioral needs.
See 8 N.Y.C.R.R. § 200.1(kk)(2)(i) (1997).
New York further requires
that each child's IEP identify a specific class placement. See
8 N.Y.C.R.R. § 200.4(c)(2)(ix). Children may be grouped together
in a special education class if they have "the same disabilities"
or if they have "differing disabilities [but] . . . similar individual
needs for the purpose of being provided a special education program."
8 N.Y.C.R.R. § 200.1(jj); see also 8 N.Y.C.R.R. § 200.6(g)(3).
Thus, the students in a class must have sufficiently similar academic
levels and learning characteristics that each child will have
the opportunity to achieve his or her annual goals. See 8 N.Y.C.R.R.
§ 200.6(a)(3)(i). A CSE must also strive to "assure that
the social interaction within the group is beneficial to each
student, contributes to each student's social growth and maturity,
and does not consistently interfere with the instruction being
provided." 8 N.Y.C.R.R. § 200.6(a)(3)(ii). Nevertheless,
the regulation cautions that the "social needs of a student shall
not be the sole determinant" of his or her class placement. See id. Similarly, the management needs of the students in
a class group may vary, provided that no student unduly interferes
with the ability of others to learn. See 8 N.Y.C.R.R. § 200.6(a)(3)(iv).
Children whose disabilities do present particular management concerns
are grouped in smaller-than-average size classes of six, eight,
or twelve students, depending on the degree of intervention required.
See 8 N.Y.C.R.R. § 200.6(g)(4).
3. The Challenged
The challenged 1995-96
IEP provided for B.W. to be educated in a year-round BOCES day
program for the developmentally disabled. There would be twelve
children in her class, taught by one teacher with the assistance
of one teacher's aide. In addition, B.W. would receive four 30-minute
sessions of speech therapy each week, three times in a group of
up to five children and once by herself. She would also participate
in a 30-minute group counseling session once per week.
The Walczaks disagreed
with this proposal, contending that their daughter's needs could
not be met in a day program and that she required a residential
placement. Alternatively, they challenged the size and composition
of the proposed BOCES class.
The Walczaks' objections
triggered an independent administrative review of the proposed
IEP. Administrative officers at both the local and state level
upheld the BOCES placement. In ruling otherwise, the district
court conclusorily adopted the Walczaks' arguments that the administrative
proceedings did not delve sufficiently into B.W.'s classroom performance
and that the School District had not shown that the BOCES placement
was adequate to permit B.W. to make educational and social progress.
See Walczak v. Florida Union Free Sch. Dist., No. 96 Civ.
1634 (CLB) (S.D.N.Y. Dec. 23, 1996). In fact, the record developed
at the administrative proceedings was exhaustive, and both the
local and state reviewing officers carefully analyzed all relevant
materials in ruling in favor of the School District. This court
is obliged to review that record to explain why the district court's
ruling must be reversed.
4. The Record Before
the District Court
a. The Independent
Over the course of six
days in May and June 1995, the local independent hearing officer
took te stimony from eight witnesses: (1) Elaine Flynn, the Interim
Chairman of the School District's CSE; (2) Frank Jordan, a School
District psychologist; (3) Louise Baines, the Supervisor of the
BOCES program for the developmentally disabled; (4) Charles Entress,
the Interim Director of the School District's Department of Special
Education; (5) Margaret Napolitano, B.W.'s most recent classroom
teacher at BOCES; (6) Jennifer Makower, B.W.'s speech therapist
at BOCES; (7) Dr. Phoebe Liss, a psychologist who had evaluated
B.W. on a number of occasions at the request of her parents; and
(8) Barbara Priestner-Werte, a psychotherapist who had privately
counseled B.W. once a week during the period 1992-95. It also
reviewed voluminous documentary evidence, including virtually
every school report and professional evaluation of B.W. since
she had entered kindergarten.
In summarizing this
material, we begin with the documentary record of B.W.'s educational
history and then proceed to the testimony before the hearing officer.
(1) The Original
Classification of B.W. as Learning Disabled
B.W. was five years
old and enrolled in a regular kindergarten class in the School
District's Golden Hill Elementary School when her learning difficulties
first became apparent. Examining neurologists and psychiatrists
identified a host of possible disabilities, including Minimal
Brain Dysfunction Syndrome with an attention deficit disorder
and hyperactivity, developmental language disorder, a mild to
moderate separation anxiety disorder, an obsessive compulsive
disorder, and Tourette's Syndrome. About this same time, B.W.
was first examined by educational psychologist, Dr. Phoebe Liss.
She determined that B.W. had a low-to-normal IQ of 81, a limited
attention span, a poor vocabulary, and an inability to follow
simple directions or to express herself in complete sentences.
The doctors uniformly
recommended that B.W. be classified as learning disabled and that
a specialized education program be developed for her with emphasis
on language and occupational therapy. The School District agreed
and proposed that in the 1989-90 school year, B.W. be placed in
a BOCES special education class with supplemental special services.
(2) B.W.'s Placement
at Bishop Dunn
Instead of enrolling
B.W. at BOCES, the Walczaks opted to place their daughter, at
their own expense, in the Bishop Dunn Memorial School, a private
school for children with learning disabilities. There, B.W. was
in a self-contained special education class for most of her studies,
but mainstreamed for others.
In May 1992, the School
District reviewed B.W.'s progress. The results were very disappointing.
The nine-year old child's reading skills were at the first-grade
level. Her math skills were even poorer. Most disturbingly, her
IQ measured 55, significantly lower than in 1989. The Walczaks
asked Dr. Liss to reevaluate B.W. She confirmed B.W.'s poor progress
in reading and math but found the child's IQ to be 70 rather than
55. Dr. Liss recommended that B.W. be placed in a self-contained
special education class and that she be provided with occupational
and speech therapy and counseling.
Several months later,
B.W. was examined by yet another neurologist and child psychiatrist.
They were the first to suggest that she had pervasive developmental
disorder, which was described as a "global neurological disturbance,"
consistent with B.W.'s various cognitive, intellectual, and language
deficits, as well as the panoply of behavioral and social problems
she presented, including "perseverations, obsessions, volatility,
magical thinking, variable relatedness, insistence on sameness,
insensitivity to other people's feelings, and ignorance of basic
social rules and conventions, and a lack of empathy with other
(3) B.W.'s Placement
In the summer of 1993,
the Walczaks finally accepted the School District's recommendation
that their daughter be educated at BOCES. She was enrolled in
a twelve-student intermediate level class and provided with additional
group counseling, individual occupational therapy, and group and
individual speech therapy.
BOCES' teachers monitored
B.W.'s progress in detailed quarterly reports. These indicate
that throughout her first year at BOCES, B.W. required constant
teacher supervision simply to focus her attention on her assignments.
She was frequently disruptive and displayed various obsessive/compulsive
traits that adversely affected her ability to interact with others.
Nevertheless, at the end of the first year, her classroom teacher,
Ms. Bloom, reported concrete progress in several areas. Most notably,
B.W. was reading at the late second- grade level. She could identify
the number of syllables in a word, perform basic grammar exercises,
and write two to three related sentences on an assigned topic.
In mathematics, B.W. could perform simple addition and subtraction
and had successfully completed a unit on telling time. Ms. Bloom
cautioned, however, that B.W.'s day-to-day performance could vary
significantly because of continuing problems with focus and behavior.
In the summer of 1994,
the Walczaks voluntarily withdrew B.W. from BOCES for four weeks
so that she could attend a residential camp for disabled children.
They are convinced that their daughter's social skills benefitted
tremendously from this experience, but the record evidence on
this point is essentially conclusory and second hand. Apparently,
no significant social progress was evident to B.W.'s teachers
when the child returned to BOCES. In her fall 1994 report, classroom
teacher Margaret Napolitano noted that B.W. still did not respond
to efforts to encourage interaction with her classmates. As for
B.W.'s academic performance, Ms. Napolitano reported that she
was reading at the mid- second-grade level, but her progress was
only fair. B.W.'s performance in science and social studies was
erratic due to problems with comprehension and behavior. By contrast,
her effort and participation in third-grade level math was described
as excellent. Ms. Napolitano's mid-year report showed B.W. to
be continuing to work at these levels.
(4) Developing the
By the 1995-96 term,
when B.W. turned twelve, she would outgrow the BOCES intermediate
program. Students functioning at her academic level generally
moved into the BOCES developmentally disabled program. There,
they were encouraged to apply academic lessons to practical tasks
such as letter writing, shopping, simple cooking, using money,
and getting along with people. Once these students turned fourteen,
the developmentally disabled program provided them with specific
The Walczaks, however,
were not satisfied with the BOCES developmentally disabled program.
In a January 27, 1995 letter to CSE Chairperson Elaine Flynn,
they explained that they wished "to obtain the maximum interventions
in [B.W.'s] self development so that she can reach her true potential."
They thought this could best be achieved through B.W.'s placement
in a full-time residential program, specifically, the one available
at Maplebrook, a private school for the learning disabled in Amenia,
In anticipation of the
annual CSE review to determine B.W.'s 1995-96 placement, the Walczaks
again had their daughter evaluated by Dr. Liss. In her January
1995 report, Dr. Liss noted a "startling" improvement in B.W.'s
behavior since her last examination in 1992. Whereas B.W. had
previously exhibited "idiosyncratic, inappropriate, and obsessive
behavior," and could not "maintain conversational exchanges even
in a controlled one-on-one basis," she was now "a far more appropriate
person, capable of following rules, and more aware of her surroundings."
The doctor also noted B.W.'s academic progress since her last
evaluation. Her reading scores were at the high second-grade to
mid-third-grade level. Her mathematics skills also tested at the
Despite this progress,
Dr. Liss recommended against B.W.'s continued placement at BOCES
or in any day program. She stated that B.W. needed to be placed
in a residential facility such as Maplebrook where she would have
around-the-clock reenforcement of appropriate behavior and constant
interaction with peers.
About this same time,
School District psychologist Frank Jordan also evaluated B.W.
He agreed that B.W. "needed a specialized program and a supportive
nurturing environment in order to have the best chance at learning."
He did not, however, conclude that these needs could only be met
in a residential program.
The School Board CSE
met on February 14, 1995 to consider B.W.'s IEP for the fol lowing
year. The Walczaks were present, as were a number of teachers
and experts who had evaluated or worked with B.W. While there
was general agreement that B.W. had made considerable academic
and social progress during her two years at BOCES, all parties
recognized that one social problem persisted: B.W.'s refusal to
interact with other children.
The Walczaks urged a
residential placement as the best means to address this problem.
CSE Chairman Flynn opposed this request because she considered
a residential placement unnecessarily restrictive to address B.W.'s
academic and social needs. The CSE concurred and proposed in its
IEP that B.W. be educated in the BOCES day program for the developmentally
On February 16, 1995,
the Walczaks formally challenged this IEP and requested a hearing.
A postponement was granted to allow the School District to correct
an acknowledged defect in the IEP: its failure to identify a specific
class grouping for B.W. at BOCES. Ultimately, the CSE proposed
that she be placed in the higher functioning of two developmentally
disabled classes that would be established in 1995-96 for children
her age. The children in that group had IQ scores that generally
ranged from 63 to 90. Only one child, with a score of 46, was
B.W.'s most recent IQ
scores -- 72 when tested by Dr. Liss; 65 when tested by Mr. Jordan
-- placed her in the middle of this group. The reading scores
for the group ranged from below kindergarten to fourth grade.
B.W.'s reading level
of high second to low third grade placed her at the high end of
this group, with four other students in her range. The group's
mathematics performance ranged from first grade to high third
grade. B.W. had tested in the second-grade to third-grade range
in mathematics, which was again consistent with four of the other
children. The results of a social skills inventory showed that
B.W. ranked at the bottom of the proposed grouping in terms of
her social skills and at the top in terms of behavior.
(5) Testimony at
the Administrative Hearing
Each witness who testified
at the administrative hearing acknowledged that B.W. had made
both academic and social progress in the years 1993-95, the period
when she was enrolled at BOCES. They disagreed, however, as to
whether the BOCES program had contributed to this progress and
whether it could adequately address B.W.'s continuing needs.
B.W.'s speech teacher,
Ms. Makower, testified that when the child first entered BOCES,
her inappropriate behavior and lack of focus made it difficult
to teach her anything. Over two years, BOCES teachers worked to
help B.W. reduce this problem. As a result, Ms. Makower had been
able to help B.W. improve the intelligibility of her speech and
her ability to follow directions. Classroom teacher Margaret Napolitano
similarly testified that B.W. was now less disruptive in class
and increasingly able to complete academic assignments without
constant teach er intervention. Ms. Napolitano acknowledged B.W.'s
continuing social problems, particularly her resistance to interaction
with other children. Nevertheless, she supported the proposed
BOCES placement because she viewed the academic and social goals
set in the 1995-96 IEP as entirely realistic for B.W. Indeed,
because she had seen B.W. make progress in both these areas in
her own class of twelve students, she thought that the child could
continue to be successful in a class of that size.
Ms. Flynn, Mr. Jordan,
and Louise Baines, the Supervisor of the developmentally disabled
program, also testified in support of the proposed IEP. Ms. Flynn
explained that the BOCES developmentally disabled program was
specifically designed to encourage students like B.W. to develop
appropriate social skills without the unnecessary restrictions
of a residential placement. Mr. Jordan agreed that the program's
emphasis on practical life skills would routinely require B.W.
to interact with other chi ldren while providing her with the
strong structure, support, and supervision that she needed to
succeed. Ms. Baines was even more emphatic, testifying that social
skills were emphasized "100% of the time" in the developmentally
Both Dr. Liss and B.W.'s
psychotherapist, Ms. Priestner-Werte, nevertheless, testified
in favor of placing B.W. in a residential facility such as Maplebrook.
While neither witness questioned the academic and social goals
set for B.W. in the proposed IEP, Dr. Liss insisted that B.W.
could only achieve the outlined social goals in a residential
facility. Ms. Priestner-Werte, on the other hand, testified that,
although she favored a residential placement because of the intensity
and consistency afforded by such a program, she did think that
B.W.'s social and academic needs could be met in the BOCES developmentally
(6) The Hearing Officer's
On September 28, 1995,
the hearing officer issued a fourteen-page decision in favor of
the School District. After carefully reviewing the evidence developed
at the hearing, he noted that the parties' primary dispute focused
on whether B.W. could receive an appropriate education in the
BOCES day program or whether she needed to be placed in a residential
facility. In finding that the School District had carried its
burden of establishing the appropriateness of the BOCES placement,
the hearing officer relied on Ms. Napolitano's testimony that
the academic components of the 1995-96 IEP were realistic, and
on Ms. Priestner-Werte's testimony that BOCES could meet the child's
educational and social needs. He further credited the testimony
of those witnesses who indicated that the proposed class grouping
would place B.W. with children who would be appropriate social
companions for her.
The hearing officer
acknowledged that a residential facility such as Maplebrook might
afford B.W. even more opportunities for social in teraction than
the BOCES day program, and that this might increase the chance
of improving the child's social skills. This single factor, however,
was insufficient to persuade him that the proposed day program
was inadequate. Citing to this court's decision in Tucker v.
Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir.
1989),2 the hearing officer explained that, while the proposed
IEP might not provide everything sought by loving parents, it
was nevertheless "reasonably calculated to provide educational
benefits for the child." Accordingly, the IEP was upheld.
b. The Appeal to
the State Education Department
Sometime after the conclusion
of the 1994-95 school term, the Walczaks removed B.W. from the
BOCES program and enrolled her at Maplebrook. They appealed the
hearing officer's decision in favor of the School District to
the New York State Education Department and sought reimburs ement
for their expenses at Maplebrook. On December 15, 1995, a state
review officer upheld the proposed BOCES placement.
In a single-spaced eleven-page
decision, the review officer meticulously reviewed the evidence
developed in the administrative hearing. Preliminarily, he found
that the proposed IEP adequately described B.W.'s academic and
social needs and provided reasonable annual goals and short-term
instructional objectives to meet those needs.
Considering the propriety
of the BOCES placement, the review officer specifically rejected
the Walczaks' argument that "inherent limitations" in the BOCES
program had prevented B.W. from making anything but slight academic
and social progress in her years there. He noted that BOCES used
a multisensory instructional approach, which all witnesses had
recognized as best suited to B.W.'s particular needs. He further
cited to the reports of B.W.'s two classroom teachers indicating
that the child had advanced academically at BOCES to the point
where she could work at the second-grade to third-grade level.
To the extent that B.W.'s progress was sometimes slow and inconsistent,
the review officer held that this was more reflective of the nature
and extent of the child's disabilities than of any inherent inadequacy
in the BOCES program. He found no support in the record for the
claims that the BOCES staff was not trained to work together or
that B.W. needed to be in a smaller class to make reasonable progress.
As to the contention
that B.W. had made only slight social progress while at BOCES,
the review officer cited to Dr. Liss's observation of "remarkable"
improvement in the child's social skills between 1992 and 1995.
To the extent Dr. Liss had also testified that B.W. could not
make further social progress in a day program, the officer rejected
this opinion, noting that Dr. Liss had not explained why the skills
she deemed important -- learning to live with others, take turns,
say how she f eels, smile at the appropriate time -- could not
be developed in a non-residential program. He observed that although
Ms. Priestner-Werte considered a residential placement preferable,
she had testified that the BOCES program could meet B.W.'s educational
and social needs. Thus, he found no basis in the record for concluding
that a highly restrictive residential placement was necessary
for B.W. to make reasonable educational progress.
The review officer also
rejected the Walczaks' challenge to the class grouping proposed
for B.W. Relying on the class profile received into evidence,
as well as the testimony of Ms. Flynn and Ms. Baines, he found
that the children's academic, social, physical, and management
needs were sufficiently similar for them to be educated together.
5. The Summary Judgment
Motion Before the District Court
The Walczaks next challenged
the IEP by filing this IDEA action in federal court. The School
District moved for summary judgment relying on the administrative
record. In opposing this motion, the Walczaks disputed the School
District's assessment of that record and sought to supplement
it with materials relating to B.W.'s progress after a year at
Maplebrook. These materials suggest that B.W. made acceptable,
if not dramatic, academic progress at Maplebrook. Her social progress
was more significant. B.W. began to establish friendships with
other children and to participate in group activities. Dr. Liss
reported that B.W.'s "living skills" had also improved from the
level of a five-year old to those of a nine-year old. Still, Maplebrook
teachers continued to observe problems that had long afflicted
B.W., notably, her difficulty with focus and inappropriate verbal
and physical peer contact.
Based on its own review
of the administrative record, as well as these supplemental submissions,
the district court denied the School District's motion for summary
judgment and, sua sponte, entered judgment in favor of the Walczaks.
In so ruling, the court made only general factual findings without
referring to the specific evidence in the record. It held simply
The administrative proceedings
in this case, on careful review, reveal that the school district
did not show within the first criterion of the Burlington test3 -- that the services offered by the school district were adequate
or appropriate. The testimony adduced at the hearing establishes
by a clear preponderance of the evidence "that the inherent limitations
in the BOCES' program make it impossible for B.W. to adequately
advance, educationally or socially, through the program offered."
[Parents' Post-Trial Brief at 10, 8/24/95]. According to the records
provided, the BOCES staff is not trained to work closely together
and does not do so; B.W. needs a smaller group setting than that
proposed by BOCES in order to learn; the BOCES program operates
only during the day, while B.W. needs a more structured environment
around the clock, "replete with opportunities for social engagement
with other children;" and that B.W. needs a specialized program
and a supportive nurturing educational environment in order to
learn in the most effective way. Id. at 11.
As to the other two
standards set by the Burlington Court, the plaintiffs clearly
have met these requirements, proving through the Maplebrook School's
teachers and administrators that the services selected by the
parents were appropriate and that equitable considerations favor
the parents['] claim. Walczak v. Florida Union Free Sch.
Dist., No. 96 Civ. 1634, at 6-7.
I. The Standard of
Judicial Review in IDEA Cases
When the parents of
a disabled child file suit under IDEA to challen ge a state-proposed
IEP and when the relief they seek includes reimbursement of expenses
incurred at a private school, an award will be entered in their
favor if it appears (1) that the proposed IEP was inadequate to
afford the child an appropriate public education, and (2) that
the private education services obtained by the parents were appropriate
to the child's needs. See School Comm. of Burlington v. Department
of Educ. of Mass., 471 U.S. 359, 370 (1985); accord Florence
County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-14 (1993)
(where both prongs of Burlington test are satisfied, court may
require state to reimburse parents for expenses incurred at a
private school even though it is not on state-approved placement
list); Still v. DeBuono, 101 F.3d 888, 891 (2d Cir. 1996).
In this case, the parties'
ispute focuses only on the first factor, i.e., the adequacy of
the 1995-96 IEP proposed for B.W. The responsibility for determining
whether a challenged IEP will provide a child with an appropriate
public education rests in the first instance with administrative
hearing and review officers. Their rulings are then subject to
"independent" judicial review. Board of Educ. v. Rowley,
458 U.S. at 205 (quoting S. Conf. Rep. No. 94-455, at 50 (1975),
reprinted in 1975 U.S. Code Cong. & Admin. News 1480, 1503).
The Supreme Court has cautioned, however, that this "independent"
review "is by no means an invitation to the courts to substitute
their own notions of sound educational policy for those of the
school authorities they review." Id. at 206. While federal
courts do not simply rubber stamp administrative decisions, they
are expected to give "due weight" to these proceedings, mindful
that the judiciary generally "lack[s] the `specialized knowledge
and experience' necessary to resolve `persistent and difficult
questions of educational policy.'" Id. at 206, 208 (quoting
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1,
42 (1973)); accord Mrs. B. v. Milford Bd. of Educ., 103
F.3d at 1120; Garro v. State of Connecticut, 23 F.3d 734,
736 (2d Cir. 1994). Deference is particularly appropriate when,
as here, the state hearing officers' review has been thorough
Two issues are relevant
to a federal court's review of a challenged IEP: (1) whether the
state complied with the procedural requirements of IDEA, and (2)
whether the challenged IEP was "reasonably calculated to enable
the child to receive educational benefits." Board of Educ.
v. Rowley, 458 U.S. at 206-07; accord Mrs. B. v. Milford
Bd. of Educ., 103 F.3d at 1120.
The initial procedural
inquiry is no mere formality. As the Supreme Court noted in Rowley,
Congress's emphasis in IDEA "upon full participation of concerned
parties throughout the development of the IEP," together with
the requirement for federal approval of state and local plans,
reflects a "conviction that adequate compliance with the procedures
prescribed would in most cases assure much if not all of what
Congress wished in the way of substantive content in an
IEP." Board of Educ. v. Rowley, 458 U.S. at 206.
In this case, the Walczaks
do not challenge the School District's compliance with IDEA's
procedural requirements. The record confirms that the Walczaks,
the various experts on whom they relied, and their attorney were
all actively involved in the development of the challenged IEP.
Indeed, numerous amendments were made at their suggestion. What
the Walczaks assert is that, despite compliance with required
procedures, the School District failed to produce a 1995-96 IEP
that was reasonably calculated to afford B.W. educational benefits
as required by the second prong of the Rowley test.
IDEA does not itself
articulate any specific level of educational benefits that must
be provided through an IEP. The Supreme Court, however, has specifically
rejected the contention that the "`appropriate' education" mandated
by IDEA requires states to "maximize the potential of handicapped
children." 458 U.S. at 196 n.21, 189. The purpose of the Act was
"more to open the door of public education to handicapped children
on appropriate terms than to guarantee any particular level of
education once inside." Id. at 192; accord Lunceford
v. District of Columbia Bd. of Educ., 745 F.2d 1577, 1583
(D.C. Cir. 1984) (Ruth Bader Ginsburg, J.) (because public "resources
are not infinite," federal law "does not secure the best education
money can buy; it calls upon government, more modestly, to provide
an appropriate education for each [disabled] child").
Plainly, however, the
door of public education must be opened for a disabled child in
a "meaningful" way. Board of Educ. v. Rowley, 458 U.S.
at 192. This is not done if an IEP affords the opportunity for
only "trivial advancement." Mrs. B. v. Milford Bd. of Educ.,
103 F.3d at 1121 (quoting Polk v. Central Susquehanna Intermediate
Unit 16, 853 F.2d 171, 183 (3d Cir. 1988)). An appropriate
public education under IDEA is one that is "likely to produce
progress, not regression." Cypress-Fairbanks Indep. Sch. Dist.
v. Michael F., 118 F.3d 245, 248 (3d Cir. 1997) (internal
citation omitted), cert. denied, 118 S. Ct. 690 (1998).
II. Review of the
Challenged 1995-96 IEP
For a federal court
to conduct an "independent" review of a challenged IEP without
"impermissibly meddling in state educational methodology," Mrs.
B. v. Milford Bd. of Educ., 103 F.3d at 1121 (citing Board
of Educ. v. Rowley, 458 U.S. at 203, 207), it must examine
the record for any "objective evidence" indicating whether the
child is likely to make progress or regress under the proposed
A review of objective
evidence is easiest, of course, when a disabled child is in a
mainstream class. In such circumstances, the attainment of passing
grades and regular advancement from grade to grade are generally
accepted indicators of satisfactory progress. See Board of
Educ. v. Rowley, 458 U.S. at 207 n.28 (deaf student's ability
to perform better than average child in class and her easy
advancement from grade to grade indicated that she was receiving
an appropriate education despite School District's failure to
provide her with a sign language interpreter). Nevertheless, this
court has looked to test scores and similar objective criteria
even in cases where a disabled child has been educated in self-
contained special education classes. See Mrs. B. v. Milford
Bd. of Educ., 103 F.3d at 1121. In such circumstances, the
record must, of course, "be viewed in light of the limitations
imposed by the child's disability." Id.
In its brief decision
in this case, the district court did not point to any objective
evidence that led it to reject the administrative officers' conclusions
that the 1995-96 IEP was adequate to provide B.W. w ith an appropriate
public education. See Kerkam v. McKenzie, 862 F.2d 884,
887 (D.C. Cir. 1989) ("a court upsetting the [administrative]
officer's decision [about an IEP] must at least explain its basis
for doing so"); Town of Burlington v. Department of Educ.,
736 F.2d 773, 792 (1st Cir. 1984) (in making its own independent
ruling, a court must carefully consider the findings made during
administrative review "and endeavor to respond to the hearing
officer's resolution of each material issue"), aff'd, 471 U.S.
359 (1985); accord Gregory K. v. Longview School Dist.,
811 F.2d 1307, 1311 (9th Cir. 1987) (adopting First Circuit standard).
Instead, as the excerpt quoted supra indicates, the district
court cited only to the parents' brief to support its finding
that B.W. had regressed socially in 1994-95.
It concluded that "inherent
limitations" in the BOCES program made it impossible for B.W.
to make satisfactory progress in that placement. These limitations
apparently included (1) the fact that B.W. would be educated in
a class of twelve students at BOCES, rather than in a smaller
group; (2) the purported failure of BOCES teachers to work closely
together; (3) the fact that BOCES was not a residential facility
providing around-the-clock structure and social engagement; and
(4) the BOCES' program's inability to provide B.W. with the sort
of "specialized program and . . . supportive nurturing educational
environment" she needed in order to learn most effectively. While
it is undisputed that BOCES is not a residential program, the
other conclusions of the district court are not supported by the
The evidence in fact
demonstrates that before B.W. entered BOCES, her reading and mathematics
skills tested at only the first-grade level. When the Walczaks'
own expert, Dr. Liss, evaluated B.W. in early 1995, mid-way through
her second year at BOCES, her reading scores had reached the second-grade
to mid-third-grade level, and her mathematics skills were at the
second-grade level. B.W.'s classroom teacher, Ms. Napolitano,
reported that in the more structured and supportive atmosphere
of the BOCES classroom, B.W. was actually able to work at an even
higher level, particularly in mathematics where she regularly
completed exercises from a third-grade book. For this reason,
Ms. Napolitano was convinced that B.W. could continue to progress
in a twelve- student class.
These objective academic
achievements are uncontradicted and certainly not "trivial." In
fact, they are impressive when considered in light of the significant
social problems that impeded B.W.'s academic progress when she
first entered BOCES. Ms. Priestner-Werte described B.W.'s social
behavior in 1992 as bizarre, "almost psychotic." Dr. Liss confirmed
that, at that time, the child was unable to follow simple directions
or focus on an assigned task. She perseverated constantly on irrelevancies
and could not express herself intelligibly. The testimony of Ms.
Napolitano and Ms. Makower, as well as the quarterly reports from
BOCES, plainly indicate that concerted efforts were made by all
of B.W.'s BOCES teachers to address these specific social problems.
Progress was sometimes slow, but after B.W. had spent two years
at BOCES, Ms. Napolitano was able to report that the child was
less disruptive, that she could remain more focused, and that
she was even able to work independently.
Further, B.W. could
now speak more clearly, an obvious prerequisite to improving her
social interaction. Dr. Liss and Ms. Priestner- Werte each confirmed
that the social progress made by B.W. during the years she was
enrolled at BOCES was remarkable.4
This case is thus completely
distinguishable from Mrs. B. v. Milford Bd. of Educ., 103
F .3d 1114. There, all the evidence indicated that the disabled
child's social problems were steadily worsening, with adverse
consequences on her education. One teacher even conceded that
the child was not learning anything in the day program in which
she was placed. See id. at 1117. Under these circumstances,
an administrative hearing officer concluded that a temporary residential
placement was essential if the child was ever to make any academic
progress. The district court concurred and we affirmed.
Cases from other circuits
point to similar objective evidence of a child's regression in
a day program before finding a residential placement to be required
by IDEA. See, e.g., Seattle School Dist. No. 1 v. B.S.,
82 F.3d 1493, 1497 (9th Cir. 1996) (where child's assaultive behavior
problems had escalated so as to require restraints, a period of
hospitalization, and ultimately expulsion from school day program,
such that no educational services were provided for six months
, administrative officer and district court properly ordered residential
placement); M.C. v. Central Regional Sch. Dist., 81 F.3d
389, 392 (3d Cir.) (where objective evidence indicated that sixteen-year
old had regressed in day program from a point where he had been
able to dress and feed himself independently to a point where
he could no longer do so, residential placement was plainly required),
cert. denied, 117 S. Ct. 176 (1996); Abrahamson v. Hershman,
701 F.2d 223, 224-25 (1st Cir. 1983) (child who "would not respond
to his name, did not seem to understand anything at all, and had
to be locked into the classroom to prevent him from running off"
could not be educated in a day program but required a residential
While some children's
disabilities may indeed be so acute as to require that they be
educated in residential facilities, it is appropriate to proceed
cautiously whenever considering such highly restrictive placements.
IDEA's preferenc e is for disabled children to be educated in
the least restrictive environment capable of meeting their needs.
The Walczaks argue that the statutory preference is primarily
concerned with educating disabled children together with their
non-disabled peers. They submit that in cases such as this one,
where everyone recognizes that no mainstreaming is possible for
B.W., the preference has no applicability. This court disagrees.
The norm in American
public education is for children to be educated in day programs
while they reside at home and receive the support of their families.
A "residential placement is, by its nature, considerably more
restrictive than local extended day programming." Carlisle
Area School v. Scott P., 62 F.3d 520, 534 (3d Cir. 1995),
cert. denied, 116 S. Ct. 1419 (1996). Thus, "even in cases in
which mainstreaming is not a feasible alternative," the statutory
preference for a least restrictive placement applies. Sherri
A.D. v. Kirby, 975 F.2d 193, 206 (5th Cir. 1992).
The objective evidence
in this case demonstrates that B.W. could make meaningful academic
and social progress in a day program. While her BOCES teachers
have candidly acknowledged the difficulties encountered in teaching
B.W., the overall picture is plainly one of improvement, not regression.
It appears from the Walczaks January 27, 1995 letter to CSE Chairman
Flynn that their purpose in seeking a residential placement for
B.W. was "to obtain the maximum interventions" for her "so that
she can reach her true potential." While the parents' wishes are
understandable, IDEA does not require states to develop IEPs that
"maximize the potential of handicapped children." Board of
Educ. v. Rowley, 458 U.S. at 189.
What the statute guarantees
is an "appropriate" education, "not one that provides everything
that might be thought desirable by loving parents." Tucker
v. Bay Shore Union Free Sch. Dist., 873 F.2d at 567 (internal
citation omitted); see Carlisle Area School v. Scott P.,
62 F.3d at 533-34 (school districts "need not provide the optimal
level of services, or even a level that would confer additional
benefits, since the IEP required by IDEA represents only a `basic
floor of opportunity'" (quoting Board of Education v. Rowley,
458 U.S. at 201)); Kerkham v. McKenzie, 862 F.2d at 886
("proof that loving parents can craft a better program than a
state offers does not, alone, entitle them to prevail under the
A disabled child is
"not . . . entitled to placement in a residential school merely
because the latter would more nearly enable the child to reach
his or her full potential." Abrahamson v. Hershman, 701
F.2d at 227. Indeed, it would violate IDEA's preference for the
least restrictive educational setting to move a child from a day
program where she is making progress to a residential facility
simply because the latter is thought to offer superior opportunities.
See Carlisle Area School v. Scott P., 62 F.3d at 535 (although
disabled child might have benefitted more from residential placement,
"the district would have erred if it had ordered the allegedly
`better' residential placement since . . . an IEP must not only
be designed to confer some educational benefit, but it also must
deliver the programming in the least restrictive educational environment").
The Walczaks insist
that a residential placement was not simply more desirable but
essential for B.W., particularly if she was to overcome her resistance
to interacting with other children. They contrast the difficulties
she was having in this area at BOCES with her present participation
in a variety of group activities at Maplebrook. The inadequacy
of an IEP is not established, however, simply because parents
show that a child makes greater progress in a single area in a
different program. See Fuhrmann v. East Hanover Bd. of Educ.,
993 F.2d 1031, 1039-40 (3d Cir. 1993) (child's "dramatic progress"
in alternative program chosen by parents does not, by itself,
establish that proposed IEP was not "reasonably calculated to
enable the child to receive educational benefits" (quoting Board
of Educ. v. Rowley, 458 U.S. at 206-07)).
In fact, B.W.'s resistance
to social interaction while at BOCES must be viewed in context.
Without minimizing the seriousness of this particular problem,
it appears that, among the numerous social deficiencies that plagued
the child when she entered BOCES, this was the one that least
directly interfered with her ability to make academic progress.
Certainly, it was of less immediate concern to her receipt of
educational benefits than her lack of focus or her disruptive
behavior. Over two years, BOCES teachers had helped B.W. improve
in both these areas, and significant academic and social gains
were thereafter realized. Under these circumstances, the BOCES
program cannot be conclusorily dismissed as "inherently deficient,"
nor its teacher coordination broadly faulted, nor its structure
criticized because it failed simultaneously to overcome B.W.'s
resistance to peer interaction. IDEA requires states to provide
a disabled child with meaningful access to an education, but it
cannot guarantee totally successful results. See Board of Educ.
v. Rowley, 458 U.S. at 192 (citing S. Rep. No. 94-168, at
11 (1975), reprinted in 1975 U.S. Code Cong. & Admin. News
In any event, the challenged
IEP specifically addressed B.W.'s need to interact with other
children, and Dr. Liss acknowledged that t he goals established
therein were appropriate. Her concern was with BOCES' ability
to help the child reach these goals. As the hearing officer properly
observed, however, Dr. Liss never satisfactorily explained why
B.W. could only improve her interaction skills in a residential
program. The BOCES developmentally disabled program was, after
all, designed to emphasize students' practical social skills.
Further, the IEP provided for B.W. to continue receiving group
counseling and speech therapy to assist her with these skills.
In assessing whether
this plan was likely to produce progress, Ms. Priestner-Werte's
testimony is particularly relevant. Although she viewed Maplebrook
as a superior facility, she stated that the BOCES program for
the developmentally disabled was sufficiently structured and supportive
to meet B.W.'s academic and social needs. It was entirely appropriate
for the hearing officer to rely on this testimony and to reject
that of Dr. Liss, particularly since Ms. Priestner-Werte had had
considerably more contact with both B.W. and BOCES personnel during
the years the child was enrolled there.
Alternatively, the Walczaks
contend that the challenged IEP is deficient because it proposed
to group B.W. in a class with children whose intellectual, social,
and behavioral needs were incompatible with her own. The district
court, however, did not find the proposed IEP inadequate on this
ground. Neither does this court.
The students' IQ, reading,
and mathematics scores indicate that a core group was operating
at an intellectual level sufficiently comparable to B.W.'s to
permit her to continue making academic progress. BOCES personnel
testified that the differences in the children's raw behavioral
scores did not indicate any violent or disruptive tendencies that
would have made B.W.'s inclusion in the group inappropriate. To
the contrary, it was hoped that the open nature of the other children
and their superior social skills would make it easier for B.W.
to interact with them.
Although B.W. was the
only child in the proposed group diagnosed with pervasive disability
disorder, this condition appears to be evidenced by a wide variety
of problems many of which are also characteristic of other disorders.
The record indicates that, whatever their specific disabilities,
the students in the proposed grouping were all slow learners.
Each needed a highly structured, multisensory program with constant
reinforcement in order to grasp the material presented. This was
precisely the approach followed in the BOCES developmentally disabled
This court finds that
the objective evidence in this case cannot support the district
court's conclusion that a BOCES placement was inadequate to provide
B.W. with an appropriate education or that a residential placement
was essential to meet her needs. Instead, a clear preponderance
of that evidence demonstrates that B.W. could make satisfactory
academic and social progress in a twelve-student class in the
BOCES day program for the developmentally disabled.
The Walczaks are, of
course, free to continue educating their daughter at Maplebrook
if they wish. Nevertheless, because the School District has demonstrated
by a clear preponderance of the evidence that the 1995-96 IEP
complied with the requirements of IDEA, it cannot be ordered to
reimburse the parents for expenses incurred as a result of their
decision to remove their child from the BOCES program.
A preponderance of the
evidence in this case clearly supports the conclusion reached
by the two administrative officers: that the challenged 1995-96
IEP was adequate to provide B.W. with an appropriate public education
as required by IDEA. The judgment of the district court in favor
of the Walczaks is reversed and the case is remanded with directions
to enter summary judgment in favor of the School District.
 The Honorable Reena
Raggi of the United States District Court for the Eastern District
of New York, sitting by designation.
 In Tucker,
this court held that the parents of a handicapped child could
not obtain reimbursement from the school district for their unilateral
placement of their child in a private school that was not "approved"
by the state education commissioner. See 873 F.3d at 568. The
Supreme Court subsequently ruled otherwise in Florence County
Sch. Dist. Four v. Carter, 510 U.S. 7 (1993).
 The standard set
forth by the Supreme Court in School Comm. of Burlington v.
Department of Educ. of Mass., 471 U.S. 359 (1995) is discussed
 Although Dr. Liss
testified that B.W.'s social improvement was primarily due to
her four-week stay at a residential camp in the summer of 1994,
this opinion must be weighed in light of the fact that, after
1992, Dr. Liss did not evaluate B.W. again until January 1995,
almost six months after the camp experience, and well into the
child's second term at BOCES.