Burilovich v. Board of Education of the Lincoln Consolidated Schools ( 2000 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
20 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187 Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0119P (6th Cir.)
File Name: 00a0119p.06
Because plaintiffs have failed to show that the IEP is
inappropriate, they are not entitled to reimbursement for the
costs of B.J.’s DTT program. See School Comm. of
Burlington v. Department of Educ., 471 U.S. 359, 374 (1985). UNITED STATES COURT OF APPEALS
Furthermore, because B.J. was offered a FAPE, the district FOR THE SIXTH CIRCUIT
court was correct in dismissing the remaining claims. _________________
III.
;

For the foregoing reasons, the judgment of the district court EDWIN BURILOVICH; LINDA

is affirmed. BURILOVICH, as next friends

on behalf of their son, Bradley

No. 98-2187
Burilovich,

Plaintiffs-Appellants, >



v.
BOARD OF EDUCATION OF THE 


LINCOLN CONSOLIDATED
SCHOOLS; RON GREINER, 

Defendants-Appellees. 
individually,

1
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 97-72191—Bernard A. Friedman, District Judge.
Argued: November 4, 1999
Decided and Filed: April 4, 2000
Before: KEITH, NORRIS, and CLAY, Circuit Judges.
1
2 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187 No. 98-2187 Burilovich, et al. v. Bd. of Educ., et al. 19
_________________ for B.J. Dr. Burilovich felt that when B.J. had less DTT, he
tended to be less social, to engage in less speech, and to
COUNSEL increase his self-stimulation. She felt he was very different in
school, and that he would be totally overwhelmed in a
ARGUED: Richard J. Landau, DYKEMA GOSSETT, Ann mainstream class. Dr. Meinhold testified that B.J. would not
Arbor, Michigan, for Appellants. Michael A. Eschelbach, benefit from mainstream kindergarten, even with a one-to-one
THRUN, MAATSCH & NORDBERG, Lansing, Michigan, paraprofessional. Dr. Holmes also indicated that DTT would
for Appellees. ON BRIEF: Richard J. Landau, DYKEMA be better than kindergarten for B.J., noting that B.J. would not
GOSSETT, Ann Arbor, Michigan, for Appellants. Michael benefit from being with peers until he developed better
A. Eschelbach, Timothy R. Winship, THRUN, MAATSCH communication skills.
& NORDBERG, Lansing, Michigan, for Appellees.
The district’s witnesses, on the other hand, saw problems
_________________ with DTT. Dr. Mesibov indicated that the DTT proposal
emphasized B.J.’s deficits, not his strengths, and that isolating
OPINION B.J. would only make his social relationships worse. Mr.
_________________ Greiner stated that the staff never wanted the DTT proposal
because they thought it would be bad for B.J. Some of the
ALAN E. NORRIS, Circuit Judge. Plaintiffs Edwin concerns expressed over the proposal were that DTT, unlike
Burilovich and Dr. Linda Burilovich (“plaintiffs”), acting on the school program, did not account for a natural
behalf of their autistic son Bradley (“B.J.”), sued the Board of environment, peer reinforcement, or independence. Staff
Education of the Lincoln Consolidated Schools and its special members also had problems with DTT because it appeared to
education director (“defendants”) under the Individuals with be a package deal, without individualization for B.J. Even
Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et. Dr. Meinhold acknowledged that B.J. would learn in
seq. Plaintiffs challenge the district court’s grant of summary kindergarten, just not in his area of weakness.
judgment for defendants, maintaining that a proposal to place
B.J. in a mainstream kindergarten violated procedural and The district court reviewed the testimony and concluded
substantive provisions of the IDEA. For the following that the school’s proposal was the only one tailored to B.J.’s
reasons, we affirm the judgment of the district court. needs, holding that the SHO’s findings were well supported
by the evidence. Given the differing opinions on both sides
I. as to the best program for B.J. and the reasonable bases in the
B.J. was born on November 15, 1990. At an early age, his record for the opinions, we emphasize that courts should not
parents noticed that his language skills were significantly “substitute their own notions of sound educational policy for
delayed. When he was three, plaintiffs sought assistance from those of the school authorities which they review.” Rowley,
their local school district, Lincoln Consolidated Schools. B.J. 458 U.S. at 206. Giving due weight to the SHO’s decision,
was evaluated by a Multidisciplinary Evaluation Team we conclude that the IEP was designed to allow B.J. to
(“MET”) at Willow Run Community Schools, which was achieve his maximum potential. Cf. Renner, 185 F.3d at 644-
providing Preprimary Impaired (“PPI”) services for Lincoln. 46 (finding IEP substantively valid under similar
The MET generated an Individualized Education Program circumstances).
(“IEP”), providing B.J. with nonclassroom PPI services, along
with speech and language therapy.
18 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187 No. 98-2187 Burilovich, et al. v. Bd. of Educ., et al. 3
will be defective if it fails specifically to address regression, On February 24, 1994, B.J. was evaluated by Dr. Luke Tsai
nor do plaintiffs posit any argument that would persuade this at the University of Michigan Adult/Child Psychiatric
court that we should so hold. Hospitals. Suzanne Boyer, B.J.’s teacher, was present for the
last part of the appointment. Dr. Tsai diagnosed B.J. as
Plaintiffs further maintain that the district court improperly autistic; Dr. Burilovich later hand-delivered a copy of Dr.
resolved a material question of fact by deferring to the SHO’s Tsai’s evaluation to Ms. Boyer. This evaluation was not
decision perceived by the court as discrediting plaintiffs’ placed in B.J.’s school file.
expert, Dr. Meinhold. Review of the SHO’s opinion reveals
that, while the SHO said that he discounted (not Plaintiffs began researching educational approaches to
“discredited”) Dr. Meinhold’s testimony, the SHO actually treating autism. They learned of an approach developed by
did consider her proposed DTT package when assessing Dr. Ivar Lovaas, called discrete trial training (“DTT”). DTT
whether B.J.’s unique needs were met. There is no issue of emphasizes heavy parental involvement, early intervention,
material fact because the SHO’s findings did take into and treatment in the home and elsewhere in the community,
account Dr. Meinhold’s views. After independent review of rather than in professional settings. Plaintiffs started a home-
the record, and giving due weight to the SHO’s decision, we based DTT program for B.J.
agree with the SHO’s conclusion.
In June 1994, Dr. Burilovich wrote to Willow Run’s
7. Whether the IEP was Designed to Allow B.J. to Attain Superintendent, Dr. Yomtoob, expressing her concerns about
his Maximum Potential the downsizing of the Willow Run infant-toddler program and
B.J.’s being given only three hours of instruction a week.
Plaintiffs maintain that there was conflicting testimony That letter also indicated that B.J. was autistic.
addressing the question of whether the IEP would allow B.J.
to attain his “maximum potential.” Plaintiffs suggest that the In September 1994, Lincoln notified B.J.’s parents that it
only expert opinion based upon a professional, individual was transferring B.J. from the Willow Run program to the
assessment of B.J. showed that he needs an intensive program Lincoln PPI program. On October 1, 1994, the parents
of individualized, one-to-one instruction. Plaintiffs note that consulted with Dr. Patricia Meinhold, a psychology professor
defendants’ expert, Dr. Gary Mesibov, had never met B.J., at Western Michigan University, who concluded that B.J. was
while plaintiffs’ experts, Drs. Meinhold and Holmes, had met an appropriate candidate for DTT and suggested the parents
and observed B.J. Plaintiffs also indicate that other defense request assistance from their school district. An IEP
witnesses included school district staff, some of whom had Committee meeting (“IEPC”) was held with the school. The
never met B.J. or who had only met him once. Plaintiffs resulting IEP placed B.J. in the district’s PPI program 2.5
reiterate their assertion that the IEP was based on the hours a day, four days a week, with 40-80 minutes per week
availability of resources and experience of school personnel, of speech and language therapy. The parents requested that
not B.J.’s needs. Plaintiffs also cite several cases approving part of B.J.’s school time be used for DTT, but the district did
of DTT. Finally, plaintiffs maintain that the IDEA’s goal that not include DTT in the IEP. B.J.’s teacher Betsy McMillin
a student be in the least restrictive environment did not weigh offered to, and did, provide DTT therapy for a half hour
in favor of the district’s IEP because B.J. was not ready for before the school day began.
the fully mainstreamed class suggested by the IEP.
B.J.’s home program continued to develop. By
Independent review of the record confirms that the parties Thanksgiving he was receiving at least 20 hours per week of
had widely differing views of the best method of education DTT. The parents decided to reduce B.J.’s school
4 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187 No. 98-2187 Burilovich, et al. v. Bd. of Educ., et al. 17
participation to two days a week following Christmas any other program.5 To support this allegation, plaintiffs
vacation; his time spent on DTT increased to 20-25 hours a point to the testimony of Amy Stamps, the school
week. According to plaintiffs, in the first half of 1995, B.J. psychologist, who indicated that the school personnel was not
made progress with his language and imitative skills, but was trained sufficiently to provide B.J. with DTT. Ms. Stamps’
not involved in classroom activities. By the last half of 1995, testimony does not support plaintiffs’ assertion, however,
B.J. was averaging 25-30 hours of home-based DTT. On because the record indicates that she still had concerns about
November 28, 1995, Mr. Burilovich visited B.J.’s classroom DTT even when she assumed that personnel could be properly
and made a videotape. The parents maintain that the behavior trained.
on the videotape confirmed Dr. Burilovich’s concerns that
B.J.’s behavior in school was more regressed than at home. The district court and the SHO correctly determined that
defendants’ program took B.J.’s unique needs into
On July 1, 1995, defendant Ronald Greiner became the consideration. As the district court pointed out, defendants’
Director of Special Education for the Lincoln Consolidated program set goals for B.J. and created a detailed daily
Schools. He began working with the Burilovich family in the schedule to address each of the goals with a program
fall of 1995 and an IEPC for B.J. was held on December 1, including both group instruction and one-on-one therapy. In
1995. On December 7, 1995, Mr. Greiner sent a letter to contrast, the court noted that it did not see how the parents’
plaintiffs memorializing conversations he had with them and proposed “standard” 40 hours of DTT therapy “was tailored
setting out the district’s perspective on an appropriate to B.J.’s needs.” The court later stated that the “school’s
program for B.J. The letter also indicated that the parents had proposal is the only one which took into consideration B.J.’s
mentioned they were having some medical evaluations goals and abilities, and developed a plan specifically to
completed addressing autism, and asked for access to that accommodate him.” After reviewing the record, and giving
information. In response, plaintiffs requested an independent due weight to the SHO’s opinion, we agree with the district
educational evaluation (“IEE”) by Dr. Meinhold. Plaintiffs court that the IEP did take into account B.J.’s unique needs.
later provided Mr. Greiner with a copy of Dr. Tsai’s March See Renner, 185 F.3d at 644 (determining that IEP addressed
1994 evaluation. In January 1996, Mr. Greiner initiated an child’s unique needs in case involving similar circumstances
evaluation of B.J. for autism. The evaluation included some to the present case).
home observation by the school psychologist, school social
worker, and Mr. Greiner. Plaintiffs also suggest that the IEP did not address B.J.’s
unique needs because it did not mention B.J.’s home program
Another IEPC was scheduled for March 18, 1996. Before of DTT or his potential for regression. They rely on a case in
that meeting, Dr. Meinhold submitted a report that included which a district court ruled against a change in placement due
a formal written program proposal for B.J. At the meeting, to a risk of regression. See Delaware County Intermediate
Mr. Greiner proposed a program predominantly consisting of Unit No. 25 v. Martin K, 831 F. Supp. 1206, 1229 (E.D. Pa.
DTT, accepting the goals and objectives developed by Dr. 1993). We do not read the case as saying that an IEP always
Meinhold, and providing for staff training by Dr. Meinhold.
According to Mr. Greiner, he proposed the plan involving
DTT because he wanted to avoid conflict and a due process 5
Although plaintiffs characterized this issue as a procedural violation,
hearing. The staff, however, did not support the proposal. we view it as an alleged substantive violation because the requirement that
While most of the meeting was taped, the proposal was not the IEP be designed to meet the child’s unique needs is derived from the
written in a formal IEP. The parties disagree over the reason definition of “special education” in 20 U.S.C. § 1401(a)(16). See Dong,
197 F.3d at 802.
16 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187 No. 98-2187 Burilovich, et al. v. Bd. of Educ., et al. 5
development for chronological age, as measured by more why there was no written document. Nonetheless, the
than 1 developmental scale, which cannot be resolved by participants left with the understanding that Dr. Meinhold
medical or nutritional intervention. This definition shall would begin training the staff the next week. That training
not preclude identification of a child through existing session was later canceled, according to Mr. Greiner, because
criteria within R 340.1703 to R 340.1710 or R 340.1713 of recent snow days.
to R 340.1715.
After the meeting, Mr. Greiner realized that the staff did not
Id. think DTT was a good program for B.J. Mr. Greiner met
privately with his staff on April 16 and 26, 1996 to discuss
The only case cited by plaintiffs to suggest a time limitation DTT and develop a new proposal. A proposal was drafted
is readily distinguishable. In Metropolitan Nashville & and sent to the parents, with goals similar to those proposed
Davidson County School System v. Guest, 900 F. Supp. 905 by Dr. Meinhold, but without any DTT. Instead, the proposal
(M.D. Tenn. 1995), the court held that a school system had placed B.J. in a mainstream kindergarten class with one-to-
violated its obligations under the IDEA to identify, locate, and one support from a trained paraprofessional.
evaluate children needing special education by delaying two
months in identifying a disabled child and an additional four An IEPC was scheduled for May 17, 1996, to which Dr.
months in properly evaluating him. The court emphasized Meinhold was not invited. At the May IEPC, plaintiffs had
that while the Sixth Circuit has recognized that technical serious concerns about placing B.J. in a mainstream
defects do not result in a violation of the IDEA if there is no kindergarten program without any DTT and discussed why
substantive deprivation, “[s]ix months without appropriate the proposal differed from the March proposal for B.J.
services, however, is one-sixth of a three-year-old’s life.” Id. According to defendants, Mr. Greiner tried to explain the
at 908. That case involved the initial identification and rationale for the proposal, but the parents were not interested
evaluation of the child, not the reevaluation at issue with B.J. in hearing details. Plaintiffs signed the IEPC, noting their
Plaintiffs maintain that the delay in this case was not just a disagreement, on May 23, 1996.
technical defect, given the more intensive programming
available for autistic students. Yet plaintiffs do not suggest Pursuant to the IDEA, the parents requested an impartial
how the delay could have caused a substantive problem with due process hearing before a local hearing officer (“LHO”).
B.J.’s IEP, since by the time the March and May IEPCs The LHO decided in favor of B.J.’s parents, finding that the
occurred, B.J. had been certified as autistic. For these March 1996 oral proposal was an IEP that should be
reasons, plaintiffs have failed to explain the relevance of the implemented, and directing the district to reimburse the
failure to recertify B.J. sooner, even if a time limitation was parents for the expenses of providing DTT at home. Both
applicable. parties appealed aspects of the decision. The state hearing
review officer (“SHO”) reversed the LHO, finding that no IEP
6. B.J.’s Unique Needs had been created in March and the May IEP was valid. The
SHO determined that the May IEP was developed without
Plaintiffs suggest that the IEP failed to take B.J.’s unique procedural or substantive violations and provided a free
needs into consideration, asserting that the district proposed appropriate public education (“FAPE”) designed to maximize
the IEP because its personnel had insufficient experience for B.J.’s potential, in accordance with federal and state law. The
SHO also denied reimbursement to the parents.
6 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187 No. 98-2187 Burilovich, et al. v. Bd. of Educ., et al. 15
Plaintiffs filed a complaint in district court appealing the placement options were not considered. Both the LHO and
SHO’s determination and alleging violations of the IDEA, the the SHO determined that the evaluation was adequate.
Rehabilitation Act of 1973, the Americans with Disabilities Plaintiffs have not made a persuasive argument otherwise,
Act, 42 U.S.C. § 1983, and the Michigan Handicappers’ Civil especially considering the district had before it previous
Rights Act. Defendants filed a motion for summary judgment evaluations of B.J. and Dr. Meinhold’s report. Nor have
addressing all counts of the complaint; plaintiffs filed a plaintiffs shown how there is a genuine issue of material fact
motion for partial summary judgment addressing their IDEA as to whether B.J. needed a new evaluation before developing
claim. The district court granted defendants’ motion and his May 1996 IEP. As the district court pointed out, B.J. was
denied plaintiffs’ motions for partial summary judgment and evaluated in early 1996 and “neither plaintiffs nor defendants
for reconsideration. The court determined that the parents argue that a new evaluation would have yielded different
had the burden of proof. Looking at specific issues raised, the results.”
court first held that the timing of B.J.’s recertification as
autistic was acceptable. Second, the court determined that the 5. Timely Recertification of B.J.
district had conducted a proper evaluation of B.J. and the
professionals involved were qualified. Third, the court found Plaintiffs also maintain that defendants failed to timely
that B.J.’s parents were sufficiently included in the IEPC recertify B.J. by waiting until 1996 to certify him as autistic,
process. Fourth, the court found that the district’s proposal even though defendants knew he was diagnosed as autistic in
was designed to address B.J.’s unique needs. Finally, after an 1994. Defendants dispute the date they learned of B.J.’s
independent review of the evidence, the court agreed with the autism diagnosis. Plaintiffs cite the portion of the IDEA that
SHO that the May IEP allowed B.J. to attain his maximum sets out the requirements for an application for funds under
potential. Because the school’s IEP was appropriate, the the IDEA. One of the requirements is that a state or local
court held that the parents were not entitled to reimbursement. educational agency “provide satisfactory assurance that
The court dismissed the remaining claims, holding that they payments . . . will be used for excess costs directly
failed because the court had found in defendants’ favor as to attributable to programs which . . . provide that all children
the IEP. . . . who are handicapped . . . and are in need of special
education and related services will be identified, located, and
The district court apparently believed that the parties had evaluated.” 20 U.S.C.A. § 1414(a)(1)(A) (West 1990)
submitted the case for review of the administrative decision (current version with differences in language at 20 U.S.C.A.
on the record. Because plaintiffs dispute that the case was § 1414 (West 2000)). This statutory provision does not
submitted in that manner, we will treat the cause as having indicate specific time periods for such evaluation. There are
been submitted on summary judgment. also no time requirements in the Michigan rule relied upon by
the district court. See Mich. Admin. Code r. 340.1711 (Supp.
II. 1983). In relevant part, that rule states:
A. Standard of Review “Preprimary impaired” means a child through 5 years of
age whose primary impairment cannot be differentiated
The IDEA was designed to give children with disabilities through existing criteria within R 340.1703 to R
a free appropriate public education designed to meet their 340.1710 or R 340.1713 to R 340.1715 and who
unique needs. See 20 U.S.C.A. §§ 1401(a)(16), 1412 (West manifests an impairment in 1 or more areas of
1990) (current versions at 20 U.S.C.A. §§ 1401(25), 1412 development equal to or greater than ½ of the expected
(West 2000)); see also Renner v. Board of Educ., 185 F.3d
14 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187 No. 98-2187 Burilovich, et al. v. Bd. of Educ., et al. 7
preponderance of the evidence” that the district’s staff 635, 644 (6th Cir. 1999). There are two parts to a court’s
members were unqualified. The district court reviewed the inquiry in suits brought under 20 U.S.C.A. § 1415(e)(2) (West
qualifications of the district’s staff and concluded that there 1990) (current version at 20 U.S.C.A. § 1415(i)(2) (West
was “no evidence” they were unqualified. This holding 2000)). First, the court determines whether the state has
indicates that plaintiffs did not meet their summary judgment complied with the procedures set forth in the IDEA. See
burden of coming forward with evidence to create a genuine Board of Educ. v. Rowley, 458 U.S. 176, 206 (1982). Second,
issue as to qualifications. Plaintiffs have failed to suggest on the court assesses whether the IEP developed through the
appeal how they would demonstrate a genuine issue. act’s procedures is reasonably calculated to enable the child
Therefore, while the district court cited the wrong standard, to receive educational benefits. See id. at 206-07. Michigan
the holding was correct. has added to this standard by requiring that an IEP be
designed to develop the “maximum potential” of a child.
The parties also engage in a debate over whether Mich. Comp. Laws. Ann. §§ 380.170(a), 380.170(a),
Michigan’s “maximum potential” standard requires the 380.1711(17)(a), 380.1751(1) (West 1997).
district to hire “top-notch consultants” and to have personnel
knowledgeable about programs related to the needs of every This court reviews both the procedural and substantive
disabled child. Because plaintiffs have failed to raise a matters under a standard of “modified de novo review.”
genuine issue as to whether there were personnel Renner, 185 F.3d at 641; see Metropolitan Bd. of Pub. Educ.
knowledgeable about DTT at the meeting and failed to argue v. Guest, 193 F.3d 457, 463-64 (6th Cir. 1999). This standard
whether Dr. Meinhold would be a top-notch consultant, we of review stems from the Supreme Court’s holding that courts
decline to address the argument. must give “due weight” to the state administrative
proceedings. Rowley, 458 U.S. at 206. In Rowley, the Court
4. Evaluation of B.J. Before IEP looked at the procedural safeguards in the IDEA that
indicated that a court “shall receive the record [sic] of the
Plaintiffs argue that the district did not conduct a required [state] administrative proceedings, shall hear additional
comprehensive evaluation of B.J. before making a significant evidence at the request of a party, and, basing its decision on
change in his placement.4 Assuming that there was a the preponderance of the evidence, shall grant such relief as
proposed significant change in placement, we must address the court determines is appropriate.” Id. at 205 (quoting 20
whether the evaluation in February 1996 was adequate. U.S.C.A. § 1415(e)(2) (West 1990)). The Court held that
Plaintiffs maintain it was inadequate because B.J. was “[t]he fact that § 1415(e) requires that the reviewing court
evaluated solely for the purpose of recertification and ‘receive the records of the [state] administrative proceedings’
carries with it the implied requirement that due weight shall
be given to these proceedings.” Id. at 206.
4
Plaintiffs assert that the change in placement was from B.J.’s home
DTT program to a fully mainstreamed school program. They cite no This court has not elaborated on the meaning of “due
support for their assertion that the home DTT was B.J.’s previous weight.” See, e.g., Doe v. Metropolitan Nashville Pub. Sch.,
placement. The record indicates that B.J. was subject to an IEP developed 133 F.3d 384, 386-87 (6th Cir.), cert. denied, 119 S. Ct. 47
in October, 1994, but B.J.’s parents unilaterally reduced his school (1998) (declining to resolve the meaning of due weight
participation in 1995. On the other hand, defendants fail to explain why
the change from the 1994 IEP to the 1996 IEP would not be a significant
change in placement. But cf. Dong, 197 F.3d at 801 (noting SHO’s
finding that a change in placement from a half-day to a full-day is typical
when a child turns five years of age).
8 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187 No. 98-2187 Burilovich, et al. v. Bd. of Educ., et al. 13
definitively).1 We have held that a court cannot simply adopt views through letters and telephone conversations with
the state administrative findings without an independent re- district staff. Cf. Dong, 197 F.3d at 802 (finding that parents
examination of the evidence. See id. We have also indicated were afforded opportunity to participate, despite school
that the weight due will vary, depending on whether the court district’s failure to reconvene an IEPC after receiving a letter
is reviewing procedural or substantive matters and whether from parents, when parents attended and expressed their
educational expertise is essential to the administrative views at two IEPCs). Furthermore, plaintiffs have cited no
findings. support for their implicit assertion that schools may never
discuss a child’s IEP, goals, objectives, or educational
With regard to procedural matters, a court should “strictly methodology out of the presence of the parents. For these
review an IEP for procedural compliance,” although technical reasons, plaintiffs have failed to demonstrate that they were
deviations will not render an IEP invalid. Dong v. Board of denied participation in the IEPC process.
Educ., 197 F.3d 793, 800 (6th Cir. 1999); see also Doe v.
Defendant I, 898 F.2d 1186, 1190-91 (6th Cir. 1990). The 3. Qualifications of District Staff
Supreme Court has emphasized the importance Congress
attached to the IDEA’s procedural safeguards: Plaintiffs also argue that the district failed to consult with
knowledgeable professionals regarding B.J.’s placement as
[T]he congressional emphasis upon full participation of required by IDEA regulations. See 34 C.F.R.§ 300.533(a)(3)
concerned parties throughout the development of the IEP, (1996) (current version at 34 C.F.R § 300.533 (1999))
as well as the requirements that state and local plans be (requiring that the school district “[e]nsure that the placement
submitted to the Secretary for approval, demonstrates the decision is made by a group of persons, including persons
legislative conviction that adequate compliance with the knowledgeable about the child, the meaning of the evaluation
data, and the placement options”). Plaintiffs maintain that
because they preferred Lovaas-style DTT therapy, at least one
1
Other circuits have adopted a variety of interpretations of “due decision-maker should have been well-versed in that
weight.” See, e.g., Adams v. Oregon, 195 F.3d 1141, 1145 (9th Cir. treatment. More specifically, plaintiffs argue that the district
1999) (courts, in recognition of the expertise of the administrative agency, should have, but did not, consult Dr. Meinhold.
must consider the findings carefully and endeavor to respond to the
hearing officer’s resolution of each material issue; after such This court has rejected “the contention that [a school
consideration the court is free to accept or reject the findings in part or in
whole, bestowing increased deference upon the hearing officer where her district] must include an expert in the particular teaching
findings are thorough and complete); Fort Zumwalt Sch. Dist. v. Clynes, method preferred by the parents in order to satisfy the
119 F.3d 607, 610 (8th Cir. 1997), cert. denied, 523 U.S. 137 (1998) (the requirement that the IEPC include persons knowledgeable
level of deference is less than required under the substantial evidence test, about ‘placement options.’” Dong, 197 F.3d at 801; see also
but consideration should be given to the state hearing panel’s opportunity Renner, 185 F.3d at 644. Furthermore, the record indicates
to observe the demeanor of the witnesses); Teague Indep. Sch. Dist. v.
Todd L., 999 F.2d 127, 131 (5th Cir. 1993) (court’s review is “virtually that Marianne Miller, a teacher consultant for the district, had
de novo”); Doyle v. Arlington County Sch. Bd., 953 F.2d 100, 105 (4th experience using DTT. The district also had Dr. Meinhold’s
Cir. 1992) (findings of fact are entitled to be considered prima facie report and was able to consider it at the IEPC. See Dong, 197
correct; the court must explain its reasons if it will not follow the F.3d at 801 (noting that the IEPC had a report from plaintiffs’
findings); Doe v. Alabama State Dep’t of Educ., 915 F.2d 651, 657 n.3 speech therapist, who utilized DTT).
(11th Cir. 1990) (the extent of deference to be given the administrative
findings of fact is an issue left to the discretion of the district court; the
court must consider the administrative findings of fact, but is free to Plaintiffs also point out that the district court used the
accept or reject them). wrong standard when it found they had failed to prove “by a
12 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187 No. 98-2187 Burilovich, et al. v. Bd. of Educ., et al. 9
1. Existence of March 1996 IEP procedures prescribed would in most cases assure much
if not all of what Congress wished in the way of
Plaintiffs argue that the district court erred in determining substantive content in an IEP.
that there never was a March 1996 IEP. They maintain that
despite the absence of a written document the evidence shows Rowley, 458 U.S. at 206. Furthermore, “[i]f the procedural
that Mr. Greiner did not intend his proposal to be tentative requirements of the IDEA are met, greater deference is to be
and planned to implement the IEP. Federal law and Michigan afforded to the district’s placement decision.” Dong, 197
regulation, however, both indicate that an IEP is a written F.3d at 800.
document. See 20 U.S.C.A. § 1401(a)(19) (West 1990)
(current version at 20 U.S.C.A. § 1401(11) (West 2000)); As for substantive issues, “[t]he ‘preponderance of the
Mich. Admin. Code r. 340.1721e (Supp. 1995). Therefore, evidence’ language in the [IDEA] ‘is by no means an
plaintiffs cannot prevail on their claim that an IEP existed in invitation to the courts to substitute their own notions of
March when there was no written document until May. sound educational policy for those of the school authorities
Plaintiffs’ suggestion that the doctrine of promissory estoppel which they review.’” See Thomas v. Cincinnati Bd. of Educ.,
should apply to Mr. Greiner’s statements in the March 918 F.2d 618, 624 (6th Cir. 1990) (quoting Rowley, 458 U.S.
meeting is equally unpersuasive. Congress created specific at 206). The Supreme Court has pointed out that:
procedures under the IDEA for developing an IEP, which
include a review process should a party such as plaintiffs be In assuring that the requirements of the Act have been
dissatisfied with the eventual IEP or the delay in creating one. met, courts must be careful to avoid imposing their view
of preferable educational methods upon the States. The
2. April 16 & 26 Meetings primary responsibility for formulating the education to be
accorded a handicapped child, and for choosing the
Next, plaintiffs argue that they were denied meaningful educational method most suitable to the child’s needs,
parental participation in the IEPC process because they were was left by the Act to state and local educational agencies
not invited to two meetings in April 1996. See 34 C.F.R. in cooperation with the parents or guardian of the child.
§ 300.345, 34 C.F.R. § 300, app. C, No. 26 (1996) (current
versions at 34 C.F.R. § 300.345, 34 C.F.R. § 300, app. A, No. Rowley, 458 U.S. at 207 (footnote omitted). Indeed, federal
5 (1999)). Defendants counter that the meetings on April 16 courts are generalists with no expertise in the educational
and 26 were staff meetings that plaintiffs were not entitled to needs of handicapped children and will benefit from the
attend. The SHO and district court agreed with defendants’ factfinding of a state agency, which is presumed to have
characterization of the meetings and plaintiffs do little to expertise in the field. See Renner, 185 F.3d at 641; Cleveland
suggest that the meetings were in fact IEP meetings. Cf. 34 Heights-Univ. Heights City Sch. Dist. v. Boss, 144 F.3d 391,
C.F.R. § 300, app. C, No. 55 (1996) (current version at 34 398-99 (6th Cir. 1998) (noting that the due weight standard of
C.F.R. § 300, app. A, No. 32 (1999)) (indicating that district review “militates against second guessing the educational
staff may prepare information before meeting with parents). expertise of the administrative officers and conclusions
Plaintiffs have not indicated how they were prevented from predicated upon these [sic] expertise”).
participating in the development of the IEP. The parents
attended a December 1996 IEPC, strongly expressed their Therefore, when reviewing an IEP we must keep in mind
views at the March 1996 IEPC, had the opportunity to that the state and local educational agencies are deemed to
participate in the May 1996 IEPC, and also expressed their possess expertise in education policy and practice. The focus
of the Supreme Court and this court upon the presumed
10 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187 No. 98-2187 Burilovich, et al. v. Bd. of Educ., et al. 11
educational expertise of state and local agencies leads to the defer to the state 2hearing officer’s decision in reviewing the
conclusion that the amount of weight due depends upon record on appeal. See Renner, 185 F.3d at 641 (holding that
whether such expertise is relevant to the decision-making court must defer to the final decision of the state authorities).
process. As a result, less weight is due to an agency’s
determinations on matters for which educational expertise is In a case involving a motion for summary judgment, the
not relevant, so that a federal court would be just as well court should still apply modified de novo review, but must
suited to evaluate the situation. More weight is due to an ensure that there are no genuine issues regarding the facts
agency’s determinations on matters for which educational essential to the hearing officer’s decision. See Metropolitan
expertise would be relevant. Furthermore, while the court Nashville Pub. Sch., 133 F.3d at 387. In rendering its
may not substitute its own view for that of the state and local decision, the court may still rely upon the hearing officer’s
educational agencies, see Rowley, 458 U.S. at 206-07, the presumed educational expertise, as long as the material facts
deference due to the administrative findings is less than that underlying the officer’s determination are not in dispute.3
generally accorded to administrative decisions, whereby the
court will uphold a decision if it is supported by “substantial B. Discussion
evidence.” See 5 U.S.C.A. § 706 (West 1996); cf. Rowley,
458 U.S. at 205 (discussing legislative history of IDEA Plaintiffs raised numerous issues in their brief. With regard
rejecting substantial evidence standard). to procedural matters, plaintiffs argue that an IEP was
finalized in March, not May, of 1996; two meetings in April
This court recently described the substantial evidence test 1996 were IEPC meetings from which the parents were
as one in which an agency’s findings would be set aside only excluded; the school district failed to consult with
when the record clearly precludes the administrative decision knowledgeable professionals regarding B.J.’s placement; he
from being justified by a fair estimate of the worth of the was not properly evaluated; and he was not timely recertified
testimony of witnesses, the agency’s informed judgment on as autistic. Plaintiffs contend that even if the procedural
matters within its special competence, or both. See Loral requirements of the IDEA were met, the IEP was
Defense Sys.-Akron v. NLRB, 200 F.3d 436, 448 (6th Cir. substantively invalid because it failed to address B.J.’s unique
1999). Because administrative findings in IDEA cases should needs and was not designed to allow him to attain his
be afforded less deference than that given to agencies under maximum potential. Each issue will be addressed in turn.
the substantial evidence test, and in view of the IDEA’s
preponderance of the evidence standard, we hold that
administrative findings in an IDEA case may be set aside only
if the evidence before the court is more likely than not to
preclude the administrative decision from being justified 2
based on the agency’s presumed educational expertise, a fair Plaintiffs spent some time arguing this point in their briefs, but we
estimate of the worth of the testimony, or both. A court see no need for further discussion in light of this court’s prior holdings on
should defer to the administrative findings only when this point.
educational expertise is relevant to those findings and the 3
decision is reasonable. By so deferring, “due weight” will Because we treat this case as submitted on summary judgment,
plaintiffs’ arguments on appeal as to who bears the burden of proof are
have been given to the state administrative proceedings. We irrelevant. Moreover, as we recently held, the party challenging the terms
also reiterate that, when there is a conflict between the of an IEP should bear the burden of proving that the placement was not
holdings of the local and state hearing officers, the court must appropriate, even in a case involving Michigan’s maximum potential
standard. See Dong, 197 F.3d at 799-800.