R., Alex v. Forrestville Valley ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3858
ALEX R., a minor, by and through BETH R.,
and BETH R., his mother and next friend,
Plaintiffs-Appellants,
v.
FORRESTVILLE VALLEY COMMUNITY UNIT
SCHOOL DISTRICT #221,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
Nos. 02 C 50373, 02 C 50502—Philip G. Reinhard, Judge.
____________
ARGUED APRIL 2, 2004—DECIDED JULY 15, 2004
____________
Before EASTERBROOK, MANION, and WILLIAMS, Circuit
Judges.
MANION, Circuit Judge. Under the Individuals with
Disabilities Education Act, 20 U.S.C. §§ 1401, et seq.,
(“IDEA”), a state that accepts federal funding to educate
disabled children must provide such children with an edu-
2 No. 03-3858
1
cation that is free, public, and appropriate. Alex R. , through
his mother, appeals from the district court’s entry of
judgment in favor of the Forrestville Valley, Illinois Com-
munity Unit School District # 221 (“the District”), arguing
that the District did not provide him with an appropriate
education from April through November 2001 and that it
committed several other violations of the IDEA. We affirm.
I.
Alex suffers from a variant of the Landau-Kleffner
Syndrome, a rare neurological disorder that begins in
childhood and affects parts of the brain that control speech
and comprehension. Children afflicted with the disorder
may display symptoms that include hyperactivity, poor at-
tention, depression, and irritability.
The District knew that Alex had the syndrome before he
entered kindergarten in the late summer of 1998. In May
1998, it accordingly prepared for Alex an individualized
education program (“IEP”), which is a written statement
that maps out how a school district will provide an IDEA-
compliant education. See 20 U.S.C. § 1414(d) (2000). The
IEP called for Alex to be included in the regular-education
classroom at the German Valley Grade School and provided
for individualized instruction; the assistance of a classroom
aide; an extended kindergarten day for instruction and
therapy; and speech and language services for 60 minutes
per week. The District likewise prepared IEPs for Alex in
April 1999 and April 2000, modestly adjusting the program
annually to meet Alex’s changing needs before he pro-
1
Alex R.’s mother, Beth, is also a party in her own right, but for
ease of use we refer only to Alex R.
No. 03-3858 3
gressed to the first and second grades. Although Alex
exhibited behavioral problems consistent with his disability,
he committed no disciplinary infractions from kindergarten
through second grade.
During Alex’s year in the second grade (2000-01), his par-
ents divorced, his sister was sexually assaulted, and his
disability-related behavior began to impede his learning.
Exactly at what point Alex’s learning began to be obstructed
is unclear. The resource-room teacher who worked with
Alex for all of that year testified that Alex’s disability-
related behavior did not impede his learning until the sec-
ond half of the year, although even then learning was still
possible with sufficient redirection. One of Alex’s second-
grade teachers, however, testified that Alex’s behavior im-
peded his learning during the first three, and last nine,
weeks of the school year. (In between, that teacher was on
2
maternity leave and could not observe Alex.) Despite what-
ever impediment to learning existed, however, Alex’s record
shows satisfactory progress for every course in his second
grade year.
Confronted with the deteriorating situation, in February
2001 the District directed school psychologist Marlene
Schuler to conduct a functional behavioral assessment of
Alex. Schuler had almost a decade of experience as a school
psychologist and had conducted four such assessments. She
also had worked with Alex since before kindergarten. In
April 2001, the District prepared a functional behavioral
analysis based on Schuler’s data. Its conclusion was that Alex
had problems with off-task behavior and making noise.
2
Neither the district court nor the hearing officer found that
there was a precise moment during the 2000-01 school year at
which Alex’s disability began to impede his learning, but it seems
clear that it did so at some point in that school year.
4 No. 03-3858
The District also arranged a number of visits by outside
consultants. Project Choices, an independent consulting group
funded by the Illinois State Board of Education, observed Alex
in school on April 12, September 11, and September 24, 2001.
The District and Alex’s mother agreed to wait until after Project
Choices completed its observations and provided its input
before completing a formal behavioral intervention plan to
guide Alex to more appropriate behavior. In its reports, Project
Choices congratulated the school for having “an excellent team
of professionals” working with Alex. Project Choices also
commended Alex’s third-grade teacher, Denise Cheek, for
having “a very welcoming classroom” and noted that Alex’s
aides did “a beautiful job of supporting Alex.” Project Choices
made several recommendations, such as breaking tasks into
smaller blocks of time, that the District implemented for Alex in
the third grade. The District further arranged for an observation
by Geri Gelander, a specialist in low-incidence disabilities who
had earlier worked with another student diagnosed with the
syndrome. Gelander observed Alex on October 3, 2001, and
made a number of recommendations that the District imple-
mented.
3
In the meantime, in May 2001, the District’s IEP team
3
“IEP team”means a group of individuals composed of—
(i) the parents of a child with a disability;
(ii) at least one regular education teacher of such child (if the
child is, or may be, participating in the regular education
environment);
(iii) at least one special education teacher, or where appropri-
ate, at least one special education provider of such child;
(iv) a representative of the local educational agency who—
(I) is qualified to provide, or supervise the provision of,
specially designed instruction to meet the unique needs
(continued...)
No. 03-3858 5
prepared the IEP for Alex’s upcoming year in the third
grade. The third-grade IEP called for Alex to study math
and social studies in the regular-education classroom, and
to study reading, language, and spelling in a resource room.
He was to receive special speech and language training for
one hour per week; a classroom aide; occupational therapy
for two hours per semester; and social-work services for one
hour per semester.
Alex began the third grade in the late summer of 2001. At
that point, he was nine years old and weighed about 150
pounds. He soon began to commit a series of violent attacks
on staff members, his fellow students, and property. During
a field trip on September 25 (the day after Project Choices
made its last visit and rendered its compliments), Alex filled
a glove with rocks and hit several other students with it.
The IEP team met on September 26 and revised Alex’s IEP
to include an individual aide and a sensory diet.
On October 3, Alex left the school building, crossed the
street to an auto body shop, and swung a piece of sheet
metal at staff members who came to retrieve him. Alex
3
(...continued)
of children with disabilities;
(II) is knowledgeable about the general curriculum; and
(III) is knowledgeable about the availability of resources
of the local educational agency;
(v) an individual who can interpret the instructional implica-
tions of evaluation results, who may be a member of the team
described in clauses (ii) through (vi);
(vi) at the discretion of the parent or the agency, other in-
dividuals who have knowledge or special expertise regarding
the child, including related services personnel as appropriate;
and
(vii) whenever appropriate, the child with a disability.
20 U.S.C. § 1414(d)(1)(B).
6 No. 03-3858
refused to return, and school personnel then carried him
back to school while he dragged his feet. Shortly thereafter,
on October 10, the District’s IEP team met to draft a be-
havioral intervention plan, which they completed on
October 17. The plan called for various tactics, including,
among other things, an adopted curriculum; more visual
aids; sensory breaks; and a “water bottle with pop top.”
Before the plan was implemented, however, Alex became
increasingly violent.
On October 11, Alex began pacing in the back of his
classroom and speaking loudly. He swung his backpack
near students and desktop computers and charged his in-
dividual aide, striking her. Alex then began rolling around
the room, first near students’ desks and then near the legs
of a folding table holding computer equipment. School staff
removed Alex to another classroom, where he imitated
karate-style chops and kicks. He also charged his teacher,
ramming her into the classroom door, clawing her, and, as
a photo taken by the District reveals, leaving scratch marks
on her chest.
Beginning on October 12, Alex served a five-day suspen-
sion for this incident. Also after this episode, Alex’s mother
filed a charge with Illinois Department of Children and
Family Services, alleging that Cheek kicked Alex without
justification during these events. The ensuing investigation
did not find that the teacher engaged in any wrongdoing.
Alex’s mother also complained to the sheriff’s department,
but the investigation by law enforcement resulted in no
charges being filed against the teacher. In the wake of these
events, school superintendent Lowell Taylor wrote a memo
to staff members, dated October 16, in which he instructed
that “[f]light risk will be responded to by summoning law
enforcement. Faculty and staff should not put themselves or
others at unreasonable/substantial risk because of Alex’s
violent tendencies.”
No. 03-3858 7
On October 19, Alex left school during the day and
walked home, while an aide and the principal followed him.
On October 22, he once again became disruptive in class.
After school staff evacuated the other students, Alex pulled
papers from the wall and tore them. He rifled through other
students’ desks, taking pencils and biting them in half. He
kicked a bucket of Leggos across the room. The District’s
photos of the aftermath of this disruption reveal a shambles.
Beginning on October 23, Alex served a two-day suspension
for this incident.
The IEP team again met on October 24 and revised Alex’s
IEP to place him in the regular-education classroom at the
Leaf River Grade School, in accordance with the request of
Alex’s mother that he be reunited there with one of his
favorite teachers, who had transferred to that school. Alex
was to have an individual aide; occupational therapy for
two hours a semester; speech and language therapy for one
hour per week; and social work services for one hour per
semester. On October 26, Alex began at the new school.
Around lunchtime on that day, a caseworker from the
Department of Children and Family Services arrived to in-
vestigate a charge against Alex’s mother regarding a prob-
lem at home. Alex met the caseworker in a conference room,
but then left the room rolling on a chair into his classroom,
where he hit another student and rammed the teacher
several times.
Although the teacher tried to stop Alex from leaving the
room, he once again managed to leave school. Several staff
members followed him, and someone at the school called
the police. Alex led a procession of his pursuers through the
playground, down a sidewalk, and to the edge of a corn-
field. There, he turned to his aide, said “so long, suckers,”
and disappeared into the cornfield. After a three-hour
search involving both fixed-wing and rotary aircraft, as well
8 No. 03-3858
as searchers on the ground, rescuers found Alex stuck in the
muddy banks of the Leaf River. His body temperature was
92.7 degrees Fahrenheit.
After Alex recovered from hypothermia and served a ten-
day suspension for his actions on October 26, the District
assigned him to a special classroom for students with be-
havioral disorders at the Mary Morgan Elementary School.
At his new school, Alex was part of a program that had
fewer than eight students and was staffed by a classroom
teacher, a student teacher, two aides, and a social worker
who was in the room almost full-time. Despite the increased
attention, over the next five months Alex would scratch,
kick, swear at, and make comments about murdering, staff
members. On one occasion, he attacked and drew blood
from two female staff members. He also committed numer-
ous attacks on school property, including one incident in
which he urinated on the floor.
On October 29, 2001, Alex’s mother initiated administra-
tive proceedings with the Illinois State Board of Education,
asserting that the District failed to comply with the IDEA.
After a hearing at which both sides presented testimony and
other evidence, the hearing officer began her legal analysis
by observing that
[t]he main issue in this case is whether the school dis-
trict offered the student a free, appropriate public edu-
cation (“FAPE”) as required under the IDEA. . . . To
determine whether the school district has provided a
FAPE requires the determination of whether the school
district: (1) complied with the IDEA’s procedural re-
quirements, and (2) developed an IEP that is “rea-
sonable [sic] calculated to enable the child to receive
educational benefits.” Board of Education of the Hendrick
Hudson Central School District, Westchester County et al. v.
Rowley, 458 U.S. 17[6], 206 (1982) . . . .
No. 03-3858 9
After four pages of analysis, the hearing officer concluded
that, although the District had complied with the procedural
requirements of the IDEA, it had nonetheless violated the
statute by “fail[ing] to develop an IEP that [was] reasonably
calculated to enable this student to receive educational
benefit.”
The hearing officer then went on to discuss various other
matters, including whether the District adequately trained
and supervised its teachers; whether Superintendent Taylor
lied under oath; and whether the District created a hostile
environment for Alex. The hearing officer never tied any of
this discussion into legal authority. The hearing officer also
concluded that the District violated its obligation to educate
Alex in the least restrictive environment, in contravention of
20 U.S.C. § 1412(a)(5). Ultimately, the hearing officer
ordered the District to provide extensive relief, including,
among other things, the appointment of private consultants
who would essentially manage and deliver Alex’s public
education. She also required that the District “develop a
disability awareness and sensitivity curriculum and begin
teaching this curriculum to every class within the district
from kindergarten to twelfth grade by the second semester
of the 2002-2003 school year.” In addition, she required that
the District return Alex to a regular-education classroom.
The District then filed an action in the district court, seek-
ing reversal of the hearing officer’s order. On the parties’
cross-motions for summary judgment, the district court
framed the primary issue as “whether the District was un-
reasonable in the IEP it developed and in carrying it out
during the September 2000 through November 2001 per-
4
iod.” After reviewing both the administrative record and
4
The district court may have been too broad in its definition of
(continued...)
10 No. 03-3858
new evidence that both parties had submitted, the district
court concluded that the hearing officer’s determination was
contrary to the preponderance of the evidence and reversed
the administrative order. In its order, the district court
discussed Alex’s escalating pattern of violence and disrup-
tion, as well as mentioning the District’s continual revisions
to Alex’s IEP that were designed to manage that behavior.
It then reasoned as follows:
The question before the court is whether the District
was unreasonable in its development and implemen-
tation of Alex’s IEP. A thorough review of the record
reveals the District was not unreasonable. The District
developed an IEP for Alex and continually updated and
evaluated it. The faculty and staff worked to implement
this plan and worked co-operatively with Alex’s mother
to provide modifications as needed. They were particu-
larly responsive to his mother’s requests concerning
whether to undertake a formal behavior implementation
plan (“BIP”). They initially honored her request to
proceed informally when Alex was in kindergarten and
in the spring of 2001 agreed with her to gather data and
to proceed with a BIP in the fall. The events of the fall of
2001 described above unfolded rapidly and the District
IEP team met frequently to try to adjust to the rapidly
deteriorating situation. Prior to September 2001, the
4
(...continued)
the relevant time period. According to Alex’s Local Rule 56.1
statement, “[a]t all relevant times, Alex R. was a 9 year-old” stu-
dent. Given that Alex turned nine on April 10, 2001, the relevant
window of time did not begin until that date. Because the disputed
IEPs were all in effect between April and November 2001, and
since the most serious behavioral problems occurred after Alex
turned nine, any error in the calculation of the relevant time
period was harmless.
No. 03-3858 11
District cannot be said to have acted unreasonably in its
education of Alex. From September through November
of 2001, the District acted reasonably in attempting to
deal with an increasingly difficult situation affecting not
only Alex but the other students as well. The District
acted in a manner that was reasonably calculated to
enable the child to receive educational benefits. The
unfortunate events of October 2001, while traumatic to
all involved, did not deny Alex a FAPE. The District
acted to deal with these events through the IEP process.
Alex presented expert testimony to the effect that the
District did not do what it should have to appropriately
educate Alex. It may be true the district could have
done a better job or had a better grasp of the needs Alex
had or been better trained to deal with his problems.
However, the District did not act unreasonably given
the circumstances it faced. The District took a thought-
ful, measured approach to Alex’s education. The
hearing officer substituted her judgment for that of the
school administrators. The hearing officer thought the
administrators were mistaken and they may have been.
However, the administrators were not unreasonable.
Forrestville Bd. of Educ. v. Illinois State Bd. of Educ., No. 02 C
50373, 2003 WL 22287388, at *3 (N.D. Ill. Sept. 30, 2003).
Alex appeals.
II.
Under the IDEA, Congress has conditioned federal
funding for the education of disabled children on a state’s
adherence to certain conditions. Beth B. v. Van Clay, 282 F.3d
493, 497 (7th Cir. 2002). Illinois chose to accept the federal
funds, and the District does not challenge the constitutional-
ity of the conditions Congress imposed in exchange for
12 No. 03-3858
those funds. See South Dakota v. Dole, 483 U.S. 203, 211 (1987)
(“Our cases have recognized that in some circumstances the
financial inducement offered by Congress might be so
coercive as to pass the point at which pressure turns into
compulsion.”) (quotation omitted). Thus, it is
uncontroverted that the District had to comply with the
IDEA.
The IDEA entitles a disabled child to an education that is
(1) free; (2) appropriate; and (3) public. 20 U.S.C.
5
§ 1412(a)(1). A parent who believes that his child’s rights
under the IDEA were violated may pursue relief in state
administrative proceedings. See 20 U.S.C. § 1415(f). Alex’s
mother, as mentioned above, did just that, and the hearing
officer ordered various forms of relief.
“Any party aggrieved by the findings and decision” of the
administrative proceedings may file a civil action in the
federal district court or in any state court of competent
jurisdiction. 20 U.S.C. § 1415(i)(2)(A). Having lost in the
administrative proceedings, the District sought relief in the
district court, which concluded that the District had pro-
vided Alex with an IDEA-compliant education during the
period in question and overturned all of the relief ordered
by the hearing officer. Although the district court reached
its holding by ruling on cross-motions for summary judg-
ment, the term “summary judgment” in the context of an
IDEA case has a different meaning than it has in a typical
Rule 56 motion. The motions filed by each party might more
accurately have been titled “motion for judgment under the
5
Courts frequently use the acronym FAPE (for “free, appropriate,
public education”) as shorthand for these requirements. Here,
however, the acronym would not be helpful. Indisputably, Alex’s
education was both free and public; the debate concerns whether
it was appropriate.
No. 03-3858 13
IDEA.” Labels aside, the party challenging the outcome of
the administrative proceedings, here the District, bears the
burden of proof. Heather S. by Kathy S. v. Wisconsin, 125 F.3d
1045, 1052 (7th Cir. 1997). In deciding whether the challeng-
ing party meets that burden, the district court “(i) shall
receive the records of the administrative proceedings; (ii)
shall hear additional evidence at the request of a party; and
(iii) basing its decision on the preponderance of the evi-
dence, shall grant such relief as the court determines is
appropriate.” 20 U.S.C. § 1415 (i)(2)(B).
On issues of law, the hearing officer is entitled to no
deference. Dale M. ex rel. Alice M. v. Board of Educ., 237 F.3d
813, 817 (7th Cir. 2001). On issues of fact, however, the
district court must accord “due weight” to the decision of
the hearing officer. Board of Educ. v. Rowley, 458 U.S. 176, 206
(1982). The rationale for this requirement is that, by mandat-
ing that district courts “receive the records of the [state]
administrative proceedings,” the statute implies that district
courts must afford an appropriate level of deference—what
the Supreme Court has styled as “due weight”—to those
proceedings. Id.“Due weight” varies from case to case. At one end of the
continuum, where the district court does not take new evi-
dence and relies solely on the administrative record, it owes
considerable deference to the hearing officer, and may set
aside the administrative order only if it is “strongly con-
vinced that the order is erroneous.” School Dist. v. Z.S., 295
F.3d 671, 675 (7th Cir. 2002) (quotation omitted). This level
of review is akin to the standards of clear error or substan-
tial evidence. Id.The more that the district court relies on new evidence,
however, the less it should defer to the administrative deci-
sion: “[j]udicial review is more searching the greater the
amount (weighted by significance) of the evidence that the
14 No. 03-3858
court has but the agency did not have.” Id. Thus, at the op-
posite extreme from cases in which the district court hears
no new evidence, the administrative decision is relatively
less important and the district court effectively acts as the
factfinder. See MM ex rel. DM v. School Dist., 303 F.3d 523,
531 & n.12 (4th Cir. 2002). In such circumstances, although
the administrative record is still part of the case and the
district court therefore must not go so far as to conduct a
trial de novo, see Monticello Sch. Dist. No. 25 v. George L., 102
F.3d 895, 901 (7th Cir. 1996), less weight is due the adminis-
trative record.
On appeal, our review of questions of law is plenary and
our review of the district court’s findings of fact is for clear
error. Beth B., 282 F.3d at 496.
A. Issues of Law
The first issue we address is whether the district court
erred when it considered the disruptive impact that Alex
had on other students as a relevant consideration in decid-
ing whether he received an appropriate education. Alex
argues that whether an education was appropriate depends
not on “what the child did or did not do wrong, but rather
[it depends] on whether the school district appropriately
addressed the child’s needs and provided him with a mean-
ingful education[al] benefit under the substantive prong of
Rowley.” That premise, as we discuss below, is basically true
in cases where the validity of the IEP is in question; how-
ever, it does not lead to the conclusion that the district court
should not have considered Alex’s disruptive impact on the
classroom. In fact, it leads to the opposite conclusion. To
understand why, we must take a step backward and look at
the larger framework governing this case.
No. 03-3858 15
The primary question before the district court was whether
Alex’s education was appropriate. In its “definitions” sec-
tion, the IDEA does not separately define “appropriate.” See
20 U.S.C. § 1401. The statute does, however, define the term
“free appropriate public education” as meaning “education
and related services that”:
(A) have been provided at public expense, under public
supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary, or
secondary school education in the State involved; and
(D) are provided in conformity with the individualized
education program required under section 1414(d) of
this title.
20 U.S.C. § 1401(8). Subsection A concerns the “free” and
“public” requirements, and the remaining three subsections
concern the criteria relating to whether an education is
“appropriate.” Alex’s main argument before the district
court was that his education was inappropriate because,
between April and November 2001, it failed to meet the
criterion of appropriateness provided by subsection D; in
other words, Alex argued that his education was not pro-
vided pursuant to a valid IEP.
Rowley instructs that an IEP is valid when (1) it was
adopted according to the IDEA’s procedures and (2) it is
“reasonably calculated to enable the child to receive educa-
tional benefits.” Rowley, 458 U.S. at 206-07. To meet the
second, substantive criterion of Rowley, an IEP must respond
to all significant facets of the student’s disability, both
academic and behavioral. CJN v. Minneapolis Pub. Schs., 323
F.3d 630, 642 (8th Cir. 2003). That is why a school district’s
IEP team is required to assess whether the student’s
16 No. 03-3858
disability-related “behavior impedes his or her learning or
that of others” in the classroom. 20 U.S.C. § 1414(d)(3) (B)(i)
(emphasis added). An IEP that fails to address disability-
related actions of violence and disruption in the classroom
is not “reasonably calculated to enable the child to receive
educational benefits.” Nor does it address an important
aspect of the student’s disability. It also does not reflect the
IEP’s team’s consideration of whether the student’s “behav-
ior impedes his or her learning or that of others” in the
classroom. Accordingly, it was correct for the district court
to consider the history of Alex’s disability, including his
disruptive outbursts in the classroom, when evaluating the
substantive adequacy of Alex’s IEP.
We next consider whether the district court applied the
correct legal standard in determining whether Alex received
an adequate IEP. It did. As the district court pointed out, an
IEP is valid when (1) the school district followed the IDEA’s
procedures and (2) the IEP is “reasonably calculated to
enable the child to receive educational benefits.” That was
a correct statement of the law. See, e.g., Evanston Comm.
Consolidated Sch. Dist. v. Michael M., 356 F.3d 798, 802 (7th
Cir. 2004). The administrative hearing officer found that the
District complied with the correct procedures for drafting
Alex’s IEP, and Alex did not controvert that finding.
Therefore, the primary issue before the district court was
prong two: whether, between April and November 2001,
Alex’s IEP was “reasonably calculated to enable the child to
receive educational benefits.” That was the question on
which the district court correctly focused.
We turn next to Alex’s contention that the district court
erred as a matter of law by not providing “due weight” to
the hearing officer’s decision. As noted above, the more that
the district court relies on new evidence, the less it should
defer to the administrative decision. Here, both parties
No. 03-3858 17
adduced new evidence in the district court. Alex submitted
extensive affidavits from his mother, behavioral consultant
James Emmett, and mental-health counselor Janie Redders.
He also submitted a local newspaper article titled “Parents
concerned over return of student.” The District also submit-
ted additional evidence, including several IEPs and their
supporting documents, as well as the affidavit of the
associate building administrator for the German Valley
Grade School, Christopher Shockey. Some of this new
evidence, including the affidavit of Alex’s mother, was very
important to the determination of whether Alex received an
appropriate education. The new evidence was also, in terms
of amount, a significant part of the total record before the
district court. Furthermore, the district court specifically
noted that it reviewed both the administrative record and
the evidence put forth for the first time before the district
court. We therefore conclude (1) that this case is close to the
end of the spectrum at which the hearing officer was
entitled to much less deference and (2) that the district court
did not err by giving the hearing officer’s findings and
decision insufficient weight.
We also observe that the hearing officer imposed some
extreme measures that obviously went beyond remedying
Alex’s situation. For example, the imposition of a “disability
awareness and sensitivity curriculum” that had to be taught
to every student in every school in the District, regardless of
how unconnected those students and schools may have
been to Alex’s situation, could not possibly have helped to
remedy any denial of Alex’s rights under the IDEA. The
imposition of such unnecessary requirements further
supports the district court’s conclusion that the hearing
officer intended to substitute her “judgment for that of
school administrators” instead of simply implementing the
IDEA, which also weighs against deference to the adminis-
trative decision.
18 No. 03-3858
The final issue of law that we address is Alex’s contention
that the District violated the IDEA because the behavioral
intervention plan of October 17 was inadequate. There are
two situations, both of which are implicated in this case, in
which a behavioral intervention plan could be warranted.
The first occurs when the disabled student is subjected to
certain types of discipline. The term “behavioral interven-
tion plan” appears only in one part of the IDEA, 20 U.S.C.
§ 1415(k)(1), a provision that deals with the discipline of a
disabled child. Under § 1415(k)(1), a duty arises to conduct
a “functional behavioral assessment,” and then implement
a “behavioral intervention plan,” when the school imposes
certain disciplinary sanctions on a disabled child. 20 U.S.C.
§ 1415(k)(1); see Farrin v. Maine Sch. Admin. Dist. No. 59, 165
F. Supp. 2d 37, 42 (D. Me. 2001). On October 11 or 12, the
District imposed on Alex a five-day suspension and thus
triggered that duty. See 20 U.S.C. § 1415(k)(1). At that point,
the District was obliged, within ten days, to have conducted
a “functional behavioral assessment,” 20 U.S.C.
§ 1415(k)(1)(B)(i), and then, “as soon as practicable,” the
District had to implement a “behavioral intervention plan.”
34 C.F.R. § 300.520(b)(2). It is not disputed that the District
adhered to this procedure when it implemented such a plan
within a few days of suspending Alex.
A second situation in which a behavioral intervention
plan could be warranted occurs when the disabled student
exhibits behavior that impedes the learning of himself or
others. Although it does not use the term “behavioral inter-
vention plan,” 20 U.S.C. § 1414(d)(3)(B)(i) requires a school
district’s IEP team, “in the case of a child whose behavior
impedes his or her learning or that of others, [to] consider,
when appropriate, strategies, including positive behavioral
interventions, strategies, and supports to address that
behavior.” Id. (emphasis added). Alex’s behavior began to
No. 03-3858 19
impede his learning during second grade, and at that point
§ 1414(d)(3)(B)(i) obliged the District’s IEP team at least to
consider whether to implement a behavioral intervention
plan, a consideration that the IEP team indisputably made.
The District therefore appears to have complied with the
procedural requirements concerning a behavioral interven-
tion plan. Alex’s argument, however, is not procedural; it is
substantive. Citing Mason City Community Sch. Dist., 36
IDELR 193 (Dec. 13, 2001), Alex maintains that the behav-
ioral intervention plan was substantively “insufficient.”
We disagree. As the administrative law judge in Mason
City stated, “[t]he specific components of the [behavioral
intervention plan] are not identified either in the federal
statute or the regulations.” Id. at 199. In other words, as
of December 13, 2001, neither Congress nor the agency
charged with devising the implementing regulations for the
IDEA, the Department of Education, had created any
specific substantive requirements for the behavioral inter-
vention plan contemplated by § 1415(k)(1) or § 1414(d)(3)
(B)(i). Alex does not point us to any statute or regulation
that has since filled the gap, and our research has uncovered
none. Alex, nevertheless, urges us to follow the lead of the
administrative judge in Mason City, who manufactured the
substantive criteria of a sufficient behavioral intervention
plan based on a string of administrative opinions.
We decline the invitation. Although we may interpret a
statute and its implementing regulations, we may not create
out of whole cloth substantive provisions for the behavioral
intervention plan contemplated by § 1415(k)(1) or
§ 1414(d)(3)(B)(i). In short, the District’s behavioral interven-
tion plan could not have fallen short of substantive criteria
that do not exist, and so we conclude as a matter of law that
it was not substantively invalid under the IDEA.
20 No. 03-3858
B. Issues of Fact
Having addressed the issues of law, we turn to the issues
of fact. First is whether the district court clearly erred in
finding that Alex’s IEP was sufficient. Under the IDEA, local
educators enjoy latitude in developing the IEP most appro-
priate for a disabled student and may apply their profes-
sional judgment. Hartmann v. Loudoun County Bd. of Educ.,
118 F.3d 996, 1001 (4th Cir. 1997). An IEP passes muster
provided that it is “reasonably calculated to enable the child
to receive educational benefits” or, in other words, when it
is “likely to produce progress, not regression or trivial
educational advancement.” Cypress-Fairbanks Indep. Sch.
Dist. v. Michael F., 118 F.3d 245, 248 (5th Cir. 1997) (quoting
Board of Educ. v. Diamond, 808 F.2d 987 (3d Cir. 1991)); accord
Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d
Cir. 1998). The requisite degree of reasonable, likely prog-
ress varies, depending on the student’s abilities. Under
Rowley, “while one might demand only minimal results in
the case of the most severely handicapped children, such
results would be insufficient in the case of other children.”
Hall by Hall v. Vance County Bd. of Educ., 774 F.2d 629, 636
(4th Cir. 1985). Objective factors, such as regular advance-
ment from grade to grade, and achievement of passing
grades, usually show satisfactory progress. Walczak, 142
F.3d at 130 (citing Rowley, 458 U.S. at 207 n.28)). Whether an
IEP was “reasonably calculated to enable the child to receive
educational benefits” is a question of fact that we review for
clear error. See MM, 303 F.3d at 531 & n.12 (citing Tucker v.
Calloway County Bd. of Educ., 136 F.3d 495, 503 (6th Cir.
1998)).
As discussed above, the IEPs that the District provided to
Alex between April and November 2001 differed in degree,
not kind, from the IEPs that governed Alex’s education in
kindergarten, first grade, and second grade. Those earlier
No. 03-3858 21
IEPs correlated with Alex’s advancement from grade to
grade; his avoidance of any disciplinary infractions; and,
until some point during the 2000-01 year in second grade,
unimpeded learning. It is also significant that Alex’s report
card shows satisfactory progress in all courses during the
second-grade year. There were thus plenty of objective
factors showing that the earlier IEPs were likely to produce
progress.
When Alex’s disability suddenly led to rapidly increasing
symptoms between late September and late October 2001,
the District responded several times by amending Alex’s
third-grade IEPs to provide for more of the same types of
therapy and supervision that had apparently worked from
kindergarten through some point during second grade.
Eventually, the IEP team went even further and provided
Alex with his own personal aide—an adult whose only
function was to attend to Alex. Throughout the IEP process,
the District responded in a way that, based on its experience
with Alex, appeared reasonably likely to produce progress.
As the district court aptly put it, “the District acted reason-
ably in attempting to deal with an increasingly difficult
situation affecting not only Alex but other students as well.”
Although the District’s efforts ultimately did not lead to a
favorable outcome, we see no clear error in the district
court’s finding that Alex’s IEPs were “reasonably calculated
to enable the child to receive educational benefits.”
Alex, of course, disagrees. He points to extensive evidence
in the record, particularly from his expert witnesses. Alex’s
position is that this evidence shows that the handwriting
was on the wall before he entered third grade. Accordingly,
argues Alex, the District should have foreseen the sudden
deterioration that he would undergo in late September and
October 2001 and have made radical, preemptive changes in
his IEP. As noted above, however, Alex committed no
22 No. 03-3858
disciplinary infractions from kindergarten through second
grade. His behavior did not begin to impede his learning
until some time during his second-grade year. Moreover, he
graduated on time from second to third grade and his
record shows satisfactory progress for every course during
his second grade year. All that Alex’s evidence tends to
establish is that, had the District possessed better foresight,
it might have provided Alex with more effective IEPs before
the sudden deterioration in his situation. The dispositive
question, however, is not whether the District provided Alex
with the best conceivable IEPs; the question is whether the
IEPs that it actually provided for him were “reasonably
calculated to enable the child to receive educational bene-
fits.” The district court did not commit clear error in finding
that they were so calculated.
We next turn to Alex’s contention that the District failed
to train its staff appropriately. In Alex’s view, the District
should have trained its teachers in “nonviolent crisis in-
tervention” and how to better address the “behavioral and
sensory needs” of Alex. The only legal authority on which
Alex relies for this argument is Campbell v. Talledge County
Bd. of Educ., 518 F. Supp. 47 (N.D. Ala. 1981). In Campbell,
the district court found that the student’s IEP was inad-
equate and then ordered that the student’s teacher be
trained to implement the new IEP that the court ordered the
school district to provide. Id. at 55-56. Campbell therefore
supports the proposition that, where an IEP is inadequate,
increased training may be part of a comprehensive remedy.
Here, because we affirm the district court’s finding that
Alex’s IEPs were valid, Campbell is inapposite.
Construed more liberally, Alex’s argument may be that,
even if his IEPs were designed correctly, the District failed
to implement those IEPs adequately, because it relied on
improperly trained teachers. Regarding implementation of
an IEP, the relevant regulation provides as follows:
No. 03-3858 23
(a) Provision of services. Subject to paragraph (b) of this
section, each public agency must—(1) Provide special
education and related services to a child with a dis-
ability in accordance with the child’s IEP; and (2) Make
a good faith effort to assist the child to achieve the goals
and objectives or benchmarks listed in the IEP.
34 C.F.R. § 300.350(a); see also CJN, 323 F.3d at 639 (citing
§ 300.350(a)(2)). It is undisputed that the District met the
first requirement. Alex’s education was provided as per his
IEPs.
As to the second requirement, although “good faith” is an
abstract quality, at least where the school district possesses
the means to provide the necessary training, it could breach
the obligation of good faith by creating a theoretically valid
IEP, but then deliberately sabotaging the student’s chance
to reach the IEP’s goals by depriving its staff members of
necessary training. In this case, however, we see no clear
error in the district court’s finding that “the District took a
thoughtful, measured approach to Alex’s education” and
thus did not act in bad faith. The salient fact is that the IEPs
that the District prepared, and that Alex’s teachers and
other staff members executed between April and November
2001, were variations on earlier IEPs that had correlated
with significant progress. Those earlier IEPs were carried
out by staff with about the same level of training, or lack
thereof, that Alex’s teachers and other staff had between
April and November 2001. The District therefore cannot be
said to have acted in bad faith when it relied on such staff
members to carry out those IEPs, or at least it was not clear
error for the district court to so conclude.
Next, we turn to Alex’s argument that the District breached
his right to confidentiality under the IDEA. In the section of
his opening brief discussing this contention, Alex provides
only the conclusory assertion that “Mr. Taylor made sure
24 No. 03-3858
people in the community, as well as the police, were privy
to details of this child’s file.” Alex fails to provide, in his
argument section, the reasons for his contention that Taylor
breached the child’s right to confidentiality under the IDEA.
Exactly what “details” about Alex that Taylor divulged in
violation of the IDEA are left to our imagination. Thus has
Alex violated Federal Rule of Appellate Procedure
28(a)(9)(A), which requires that an appellant’s argument
contain both “contentions and the reasons for them.” Id.
(emphasis added); see also Hrobowski v. Worthington Steel Co.,
358 F.3d 473, 478 (7th Cir. 2004) (applying Rule 28(a)(9)(A)
where the appellant failed to cite to facts supporting his
argument). We therefore decline to address the merits of
this argument. See id.We also do not address the merits of Alex’s argument that
the District created a hostile environment for him in viola-
tion of the IDEA. Alex’s only legal authority for that
proposition is, as he puts it, “a policy guidance document
[issued by the Department of Education in 2000] which de-
tailed the serious and pervasive problem of students in
public schools being harassed and discriminated against
based upon his or her disability [sic].” Alex does not ac-
tually cite to that authority, instead providing a citation to
the record that we cannot decipher. This will not do. See
Fed. R. App. P. 28(a)(9)(A); Hrobowski, 358 F.3d at 478.
Finally, we observe that whether the District violated the
IDEA by failing to educate Alex in the least restrictive en-
vironment is not at issue in this appeal. The IDEA contem-
plates that an appropriate education is one that occurs in the
least restrictive environment. S.H. v. State-Operated Sch.
Dist., 336 F.3d 260, 265 (3d Cir. 2003). This principle of
“mainstreaming” means that disabled students must, to the
maximum extent appropriate, be educated with students
who are not disabled. 20 U.S.C. § 1412(a)(5); Beth B., 282
F.3d at 497. The hearing officer apparently thought that
No. 03-3858 25
whether Alex was educated in the least restrictive environ-
ment was in dispute: she ruled that the District violated
§ 1412(a)(5) when it placed Alex in the Mary Morgan
Elementary School, and she ordered that he be returned to
a regular-education classroom. The district court reversed
that ruling.
On appeal, however, Alex maintains that an analysis of
whether he received an education in the least restrictive
environment is inapposite to this case. We are puzzled as to
why the hearing officer would have held that the District
violated § 1412(a)(5) and ordered it to “reintegrate [Alex]
into the regular education classroom” if, as Alex now in-
sists, mainstreaming were not an issue. Regardless of
whether mainstreaming ever was disputed in this case, Alex
has at least waived appellate review of that question.
III.
The district court correctly focused on whether the District
provided Alex with adequate IEPs and, in deciding that
question, properly took into account the different aspects of
Alex’s disability, including his outbursts in the classroom.
Because the district court relied on extensive evidence
beyond the administrative record, it was obliged to give the
administrative decision significantly less deference. As the
district court committed no clear error of fact in concluding
that Alex’s IEPs were valid and that “the District took a
thoughtful, measured approach to Alex’s education” (and
not an approach marked by bad faith), we AFFIRM the
judgment of the district court.
26 No. 03-3858
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-15-04