K.E. v. IDS No. 15 ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-2176
___________
K.E., by and through her parents, *
K.E. and T.E., *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Independent School District No. 15, *
St. Francis, Minnesota, *
*
Appellee. *
___________
Submitted: December 14, 2010
Filed: August 3, 2011
___________
Before LOKEN, ARNOLD, and BYE, Circuit Judges.
___________
ARNOLD, Circuit Judge.
K.E. is an eleven-year-old special education student who lives in Minnesota
Independent School District No. 15 (the District). An administrative law judge for the
Minnesota Department of Education determined that the District had denied K.E. a
free appropriate public education (FAPE) within the meaning of the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1482. After K.E. filed an
action in federal district court seeking attorney fees and costs, both parties filed cross-
motions for judgment on the administrative record. The district court1 reversed the
ALJ's decision and denied K.E.'s motion for fees and costs, and K.E. appealed. We
affirm.
I.
K.E. attended St. Francis Elementary School in the District during all times
relevant to this case. Before K.E. enrolled there as a kindergartner, Dr. Jonathan
Miller, a pediatric neuropsychologist, evaluated her based on reports that she had been
suffering from severe mood swings and difficulties with hyperactivity, impulsivity,
and a decreased attention span. At that time, K.E. had already been diagnosed with
attention deficit hyperactivity disorder (ADHD), fetal alcohol syndrome, and
disruptive behavior disorder. (She had also been given a diagnosis of bipolar disorder,
but her treating physician, Dr. Gary Gronstedt, was in the process of ruling that
diagnosis out.) Following his own evaluation, Dr. Miller confirmed the diagnosis of
disruptive-behavior disorder, and further concluded that K.E. had non-specific forms
of cognitive disorder and mood disorder. Testing also revealed that K.E.'s IQ was 82,
which was low-average in range. Based on these results, Dr. Miller offered a number
of recommendations for K.E., many of which were directed at aiding her performance
at school.
As K.E. was completing first grade, the District conducted its own evaluation
to determine whether she was eligible to receive funds for special education services.
In the resulting report, the District noted K.E. had been diagnosed as having "mood
disorder and ADHD" and that her mother (Parent) had reported a diagnosis of bipolar
disorder as well. The evaluation then summarized reports that Parent and K.E.’s
teachers had provided, all of which indicated that K.E. required assistance following
directions, staying on task, and keeping organized. The reports also indicated that
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
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K.E. performed below grade level in reading, writing, and math, and testing revealed
that K.E.’s IQ was 78. Despite these difficulties, though, the District determined that
K.E. was ineligible for special-education services because her file did not include a
current DSM-IV diagnosis of a medical condition that would interfere with her
academic performance or progress. Soon thereafter, Parent obtained a DSM-IV
diagnosis that her daughter had ADHD, and K.E. was deemed eligible for special
education services under the category "other health disabilities." Minn. R. 3235.1335
(2004). (DSM-IV is the fourth edition of the Diagnostic and Statistical Manual of
Mental Disorders.)
Upon K.E.'s becoming eligible for special education services, the District, by
way of an individualized education program (IEP) team – which includes the child's
parent, school teachers, and those with relevant expertise – created an initial IEP for
K.E. See 20 U.S.C. § 1414(d) (1). This IEP established goals for K.E. in the areas of
reading, writing, spelling, working independently, and social skills, and it specified
various adaptations intended to assist her in those targeted areas. The next year, after
K.E. had entered the third grade, the IEP team created a second IEP that included new
goals for reading, spelling, and math; though it made slight changes to the goals in
independent work and social skills, the adaptations remained substantially the same.
At the same time, Parent arranged for Dr. Richard Ziegler, a professor of
pediatrics and neurology, to evaluate K.E. The results of this evaluation indicated that
K.E. had below-average cognitive abilities, low-to-average skills in reading and math,
and a significant impairment in written language. Many of these findings were
consistent with the District’s earlier evaluation, although Dr. Ziegler did note a
significant decline in certain areas of K.E.’s cognitive functioning and academic skills
for which he could provide no definite explanation. Dr. Ziegler stated that K.E.’s
progress should be viewed in the "context of her complex psychiatric concerns": He
suggested that any "general slowing or plateauing" of her academic abilities likely
resulted from "her difficulty managing her behavior and following the flow of
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information in the classroom," which, in turn, resulted from "psychiatric issues
including mood disorder and ADHD." The doctor also noted that K.E.’s medications
might be affecting her performance. To address these deficits, Dr. Ziegler
recommended speech and language services and additional written language services,
as well as small-group instructional time or paraprofessional support in the classroom.
After the District received a copy of Dr. Ziegler's evaluation, K.E.’s IEP team
met to discuss its findings and recommendations. A speech and language clinician
participated in the meeting specifically to address the recommendation concerning
speech and language services. After discussing Dr. Ziegler’s report in its entirety, the
IEP team concluded that two significant changes to the adaptations section of K.E.'s
IEP were appropriate: first, K.E. would have access to an educational assistant (EA)
in the classroom (the record indicates no distinction between a "paraprofessional"
(referred to by Dr. Ziegler) and an EA), and second, she would be allowed to take
sensory breaks as needed. The IEP team determined, however, that K.E. did not need
speech and language services. At the beginning of K.E.'s fourth-grade year, the IEP
team made additional changes. Specifically, the team set new goals in the IEP for
reading, spelling, and math but made little or no change in areas of independent work
or social skills.
Shortly before K.E. finished fourth grade, the District completed a
comprehensive three-year reevaluation of her that resulted in an eleven-page report.
In the report, the District again referred to K.E.'s ADHD diagnosis, and it added that
K.E., while hospitalized on an unspecified occasion, had been diagnosed with
personality disorder and probable bipolar disorder. The reevaluation report included
a finding that K.E.’s academic performance was low-average when compared to her
peers, noting particular concern about her language-based learning abilities, and
attached reports from her teachers indicated that she struggled with reading
comprehension. The teachers' reports also noted that K.E. had difficulty sustaining
attention, following directions, remaining quiet, working independently, completing
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assignments, and staying organized, and that she often acted impulsively and lacked
self-control.
As part of the reevaluation process, the District conducted a "sensory profile,"
which concluded that K.E. had difficulty processing sensory input and regulating her
behavior in school due to its increased distractions and demands; to address these
difficulties, the profile recommended that K.E. be given additional sensory input
throughout the day and be allowed to take movement breaks as necessary. The
District also conducted a "functional behavior assessment," which identified two of
K.E.'s behaviors as requiring increased attention: blurting out and negative
interactions with peers. Based on the assessment, the District created a behavioral
intervention plan (BIP), which identified common triggers for the two targeted
behaviors, as well as strategies that staff could use to reduce the likelihood that K.E.
would engage in them. As a result of the reevaluation, the District changed K.E.'s
listed disability from "other health disabilities" to "emotional or behavioral disorders
with secondary other health disabilities." The stated reason for this change was K.E.'s
diagnosis of personality disorder and probable bipolar disorder.
After the District completed the reevaluation report, the IEP team met to review
the results and make changes to K.E.’s IEP. At that time, the team rewrote some of
the IEP goals with greater specificity and incorporated the newly-created BIP into the
IEP by reference. The team also included a variety of new adaptations for K.E. in the
IEP, including access to sensory tools, supervision by an EA during lunch and recess,
reading aloud of tests, the opportunity to redo assignments and retake tests for an
improved grade, and occupational therapy. It was also at this meeting that Parent
informed the IEP team that K.E. had recently been evaluated by Dr. Secan Unal, a
psychiatric psychologist at the Mayo Clinic, and that Dr. Unal had diagnosed K.E.
with bipolar disorder with psychotic traits. K.E. continued to be treated by Dr. Unal
throughout the remaining months relevant to this case.
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At the beginning of K.E.'s fifth-grade school year, Parent contacted the District
to inquire about potential day treatment options for K.E. Jacqueline Stein, the director
of special services for the District, discussed the available options with Parent, but Ms.
Stein advised that an IEP team meeting would be necessary before any changes in
K.E.'s placement were made. At Parent's urging, Dr. Unal then contacted the District
to discuss the day-treatment issue, and she sent a follow-up letter, describing K.E.'s
mental illness as a "severe psychopathology [that] presents with mood and thought
disturbances" and one that is "episodic ... which impacts [K.E.'s] cognitive
functioning, emotional regulation and behavioral control." Dr. Unal also stated that
it was her impression that K.E. could "hardly read" and that she did not possess
"appropriate skills in mathematics." Dr. Unal concluded the letter by offering a list
of recommendations for K.E.'s fifth-grade year, including a close alliance between
K.E.'s parents and District staff to monitor changes in K.E.'s mood, close observation
and guidance to avoid problems in peer relationships, paraprofessional help during the
school day, close supervision to monitor K.E.'s reaction to academic demands to avoid
substantial mood episodes, academic instruction in small steps, additional time to
complete assignments, adjustments in homework, assistance in narrowing down
homework assignments and accurately translating them to her notebook, transition
time for changes in activity or setting, and a method of alternative communication for
K.E. to convey that she needed a break.
In late October and again in November of K.E.'s fifth-grade year, the District
attempted to schedule an IEP team meeting to consider the possibility of day treatment
for K.E. and to discuss Dr. Unal's recommendations. Parent cancelled both of these
meetings, however, and the team did not meet until January. In the meantime, Parent
filed a due process complaint and request for administrative hearing with the
Minnesota Department of Education. When the IEP team meeting did take place,
Parent and an attorney for K.E. abruptly left following a disagreement on how the
meeting would proceed. After they left, the remaining members continued the
meeting; they discussed Dr. Unal's recommendations and revised K.E.'s IEP to
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provide more specific goals in the areas of writing, independent work, and social skills
and additional adaptations. The team also determined that it would be appropriate to
conduct a new evaluation of K.E. to develop current assessments of functional
behavior and language. The District then sent K.E.'s Parent a proposed IEP,
accompanying documentation, and a recording of the meeting, but Parent refused to
consent to the changes or evaluation.
Shortly thereafter, prompted by what Dr. Unal described as worsening mood
symptoms, K.E. was excused from school temporarily, and Dr. Unal wrote a letter to
Ms. Stein providing additional information concerning K.E.'s status. In that letter, Dr.
Unal stated that K.E. had suffered a recurrence of her bipolar disorder and was
suffering from "pronounced racing of thoughts [and] deficits in sustaining attention,"
which affected her "working memory, goal directed behavior, emotional self-control,
organization, and planning functions." To address these issues, Dr. Unal
recommended a reduction in school hours and home-bound instruction, effective
immediately, for two months. Ms. Stein immediately sent a written response to
Dr. Unal, indicating that an IEP meeting would be necessary because a shortened
school day would affect K.E.'s academic performance. Ms. Stein invited Dr. Unal to
participate in that meeting, but if she could not participate, Ms. Stein asked Dr. Unal
to explain her conclusions in more detail and state whether her recommendation for
a shortened school day might change if the educators who worked with K.E. had not
observed an increase in her symptoms.
After sending this letter to Dr. Unal, Ms. Stein urgently scheduled an IEP team
meeting; at the request of Parent and counsel for K.E., the meeting was then
rescheduled. But Parent and counsel for K.E. ultimately did not attend the
rescheduled meeting, and, due to their absence, Dr. Unal declined to participate via
telephone. The IEP team proceeded anyway, and they discussed Dr. Unal's
recommendation for a reduction in school hours and K.E.'s recent behavior and
academic performance. Although the team determined that a shortened school day
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was not appropriate for K.E. at that time, they revised the IEP to incorporate
additional accommodations focused on tracking K.E.'s emotional mood and providing
her with a variety of sensory breaks. The social worker for the District also agreed to
create additional coping strategies to assist staff when working with K.E. The District
provided Parent with notes from the meeting, accompanying documentation, and a
proposed IEP, but Parent did not consent to the revisions.
Dr. Unal then responded to Ms. Stein's letter and opined that Ms. Stein did not
fully understand the severity of K.E.'s problems. Dr. Unal therefore proposed placing
K.E. in either a day-care setting or a different school district with more resources and
experience dealing with "highly disabled children." Ms. Stein soon wrote back,
reiterating that the educators who worked with K.E. had not observed the same
changes in mood and academic performance that served as the basis for Dr. Unal's
recommendations. Ms. Stein also expressed her disappointment that Dr. Unal had
failed to address her specific questions regarding the recommendation of a shortened
school day, and she explained that the District could not satisfy its obligations under
the IDEA "by simply acceding to a parental request or by blindly accepting another
professional's conclusions and/or programming recommendations."
Parent then filed an amended due process complaint and request for
administrative hearing that included additional requests for a shortened school day,
transportation, and an appropriate therapeutic education. During a due process
hearing that lasted nine days, the ALJ received testimony from K.E., Parent, members
of the District staff, and Dr. Unal. Three expert witnesses also testified about the
complexity of K.E.'s mental illness and the adequacy of the District's efforts to
provide for K.E.'s education. The ALJ concluded that the District had failed to
comply with several procedural requirements of the IDEA, and that the District's
failure to conduct appropriate evaluations, to include the results of both outside and
its own evaluations in K.E.'s IEPs, and to develop an appropriate IEP and BIP and
revise them as necessary to address K.E.'s lack of progress, had denied her a FAPE
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from December of K.E.'s second-grade school year until February of her fifth-grade
year – the date that Parent filed the amended due process complaint. When the
District appealed the ALJ's decision to the district court, the court granted the
District's motion for judgment on the administrative record, concluding that the
District had indeed provided K.E. with a FAPE. K.E. then filed this appeal.
II.
K.E. contends that the district court failed to apply the correct standard of
review because it did not afford the level of deference to the ALJ's findings and
conclusion that the IDEA requires. But K.E. does not challenge any specific finding
or conclusion made by the district court as erroneous for this reason, only the court’s
ultimate determination that K.E. had received a FAPE. And with respect to that
conclusion, K.E.'s sole argument is that the decision was improper because it was "in
direct contradiction [to] the opinion of the [ALJ] who heard the same evidence and is
entitled to deference regarding credibility determinations and findings of fact." While
we certainly agree with K.E. that the IDEA requires some limited deference, we reject
her assertion that the district court failed to apply that level of deference here.
Under the IDEA, an aggrieved party may seek judicial review of a state
administrative hearing decision in a federal district court. See 20 U.S.C.
§ 1415(i)(2)(A). The district court must then review the administrative record, hear
additional evidence if requested, and "basing its decision on the preponderance of the
evidence, ... grant such relief as [it] determines is appropriate." Id. at § 1415(i)(2)(C).
In deciding whether the IDEA has been violated, the district court must
"independently determine whether the child [in question] has received a FAPE."
CJN v. Minneapolis Pub. Schs., 323 F.3d 630, 636 (8th Cir. 2003), cert. denied,
540 U.S. 984 (2003). In doing so, the court must also give " 'due weight' to agency
decision-making." Id. (quoting Independent Sch. Dist. No. 283 v. S.D. ex rel. J.D., 88
F.3d 556, 561 (8th Cir 1996)). This somewhat "unusual" standard of review is less
deferential than the substantial-evidence standard commonly applied in federal
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administrative law. Dist. No. 283, 88 F.3d at 561. But we have recognized that this
limited grant of deference – "due weight" – is appropriate in IDEA cases because the
ALJ "had an opportunity to observe the demeanor of the witnesses and because a
[district] court should not substitute its own notions of sound educational policy for
those of the school authorities that [it] review[s]." CJN, 323 F.3d at 636 (internal
quotation marks and citation omitted).
K.E. argues that the district court failed to give due weight to the results of the
administrative hearing because it "impermissibly chose between [the views] of
conflicting experts" when coming to its decision that K.E. had received a FAPE.
Implicit in this argument, of course, is the premise that the ALJ also "chose" between
these experts when making its decision, that is, it made a credibility determination
regarding the testimony offered by the expert witnesses, to which the district court
failed to defer. This characterization receives no support in the record, however,
given that neither the ALJ nor the district court based any of their findings on
credibility determinations concerning one expert versus that of another. To the
contrary, the ALJ cited approvingly in its opinion to the testimony of all three of the
experts who testified at the administrative hearing, and while the district court cited
to only one of these three experts in its opinion, there is nothing in the record to
indicate that it found any one of them to be more or less credible than did the ALJ.
The same is true with respect to the fact witnesses who testified at the
administrative hearing. Both the ALJ and the district court cited selectively
throughout their respective opinions to the testimony of these individuals. But again,
there is nothing in the district court’s opinion to indicate that it based any of its
findings on a credibility determination regarding these witnesses that differed from
that of the ALJ. In fact, on the two occasions where the ALJ did make an explicit
finding that a witness had testified "credibly" regarding a particular issue, the district
court either did not address that issue in its opinion (because the issue had not been
appealed) or it agreed with the conclusion reached by the ALJ. The ALJ never made
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an explicit finding that any witness had testified incredibly at the hearing, and the
district court likewise gives no indication that it disbelieved any of the witnesses.
Despite K.E.'s assertions to the contrary, the district court was well aware of its
limited authority, and in each instance where it disagreed with the ALJ, the court
neither failed to defer to the ALJ’s observations of the witnesses nor substituted its
own notions of educational policy for those of trained educators. Rather, the court
thoroughly reviewed the administrative record and determined that a preponderance
of the evidence did not support the ALJ’s conclusion. The district court did ultimately
reach a different conclusion from the ALJ's as to whether the District provided K.E.
with a FAPE. But that decision alone is wholly insufficient to show that the court
somehow failed to apply the required level of deference. Whether a child has received
a FAPE is a mixed question of law and fact. CJN, 323 F.3d at 637. Accordingly, when
a district court examines this issue, it is "obligated to determine independently the legal
significance of the [applicable] facts." Cf. id. at 636-37. That the district court here
sided with the District means neither that it necessarily believed the testimony of the
school authorities and its experts more than the ALJ did nor that the court's analysis
was incorrect. Rather, it means only that the district court "reached a different
conclusion based on [its own] understanding of the law." Cf. id. This was not a failure
to give "due weight" to the results of the administrative hearing.
III.
K.E. also maintains that the district court erred by failing to conclude that the
District committed a variety of procedural violations of the IDEA. In particular, K.E.
contends that the District denied Parent a meaningful opportunity to participate in the
IEP process, that it failed to consider the results of outside evaluations, and that it
developed IEPs for K.E. that were deficient in many respects.
When reviewing a school district's compliance with the IDEA, a district court
must engage in a two-part inquiry: It must first determine whether the school district
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followed the procedures set forth in the IDEA, and then it must decide whether the
resulting IEP was "reasonably calculated to enable the child to receive educational
benefit." Board of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982). "If these
requirements are met, the [school district] has complied with the obligations imposed
by Congress and the courts can require no more." Id. at 207. (Although Rowley was
decided under the IDEA's precursor (the Education of the Handicapped Act), its
principles apply to IDEA decisions, see, e.g., Lathrop R-II Sch. Dist. v. Gray, 611 F.3d
419, 424 (8th Cir. 2010)). As we have already said, whether a school district has
provided a student with a FAPE is a mixed question of law and fact; we review the
district court's ultimate determination de novo. See School Bd. of Indep. Sch. Dist.
No. 11 v. Renollett, 440 F.3d 1007, 1011 (8th Cir. 2006). But a district court's findings
of fact are binding unless they are clearly erroneous. Id.To satisfy the procedural requirements of the IDEA, a "school district must
follow the procedures set forth in the [statute] to formulate an IEP tailored to meet the
disabled child's unique needs." Id. at 1011. Congress intended that such procedures
would guarantee "parents and guardians a large measure of participation" in the IEP
process and would assure that the resulting IEP included "much if not all of what
Congress wished in the way of substantive content." Rowley, 458 U.S. at 206-07. If
a school district fails to comply with IDEA procedures, however, the IEPs that result
from the violation are not necessarily invalid. Renollett, 440 F.3d at 1011. Rather,
"[a]n IEP should be set aside only if [the] procedural inadequacies compromised the
pupil's right to an appropriate education, seriously hampered the parent's opportunity
to participate in the formulation process, or caused a deprivation of educational
benefits." Id. (internal citation omitted).
According to K.E., the District violated IDEA procedures by denying Parent a
meaningful opportunity to participate in the IEP process. In particular, she asserts that
the District gave inadequate notice to Parent of certain IEP team meetings, which
Parent did not attend, see 34 C.F.R. § 300.322(a)(1) and (2), and that it failed to take
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the necessary action to convince Parent that she should attend those meetings, see id.at § 300.322(d). K.E. also asserts that the District had already "predetermined" what
educational programming would be provided to her before many IEP meetings, and
that this predetermination denied Parent the opportunity to participate in the IEP
process, see § 300.501(b), (c); Deal v. Hamilton County Bd. of Educ., 392 F.3d 840,
857 (6th Cir. 2004), cert. denied, 546 U.S. 936 (2005). The ALJ rejected these
arguments, however, and we need not reach their merits given that K.E. failed to
challenge those determinations before the district court and, in fact, asked that the
district court uphold the ALJ's determinations. See Schuldt v. Mankato Indep. Sch.
Dist. No. 77, 937 F.2d 1357, 1363 (8th Cir. 1991), cert. denied, 502 U.S. 1059 (1992).
"It is a well settled rule that issues not raised in the trial court will not be considered
on appeal except in exceptional cases where the obvious result would be a plain
miscarriage of justice . . . or would be inconsistent with substantial justice." Nolte v.
Pearson, 994 F.2d 1311, 1316 (8th Cir. 1993) (internal quotation marks and citations
omitted). This is not such an exceptional case.
We similarly decline to address the merits of K.E.'s argument that the District
violated her procedural rights because it failed to include assistive technology in her
IEPs. The IDEA requires that a school district provide assistive technology if a child's
IEP team determines that the child needs access to that technology in order to receive
a FAPE. See 34 C.F.R. § 300.105; see also 20 U.S.C. § 1414(d)(3)(B)(v). K.E.
contends that the District "never considered assistive technology" or conducted
"assessments or evaluations" to determine whether such technology was appropriate,
but the ALJ rejected a similar argument and K.E. did not raise the issue before the
district court. Accordingly, we will not decide it as part of this appeal.
K.E. next contends that the District violated IDEA procedures by failing to
consider outside evaluations when developing her IEPs. She also maintains that the
District failed to meet with Parent to discuss the outside evaluations or the
recommendations for K.E.'s educational programming that they contained. In
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advancing these claims, K.E. focuses, for the most part, on the evaluation and
recommendations offered by Dr. Unal. She also asserts more broadly, however, that
the District failed to provide Parent with the opportunity to attend any IEP meeting at
which time "all salient requests and recommendations were discussed."
Under the IDEA, an IEP team must "consider" the results of evaluations when
developing an IEP. 20 U.S.C. § 1414(d)(3)(A)(iii). The district court found that the
District satisfied that obligation with respect to the outside evaluations conducted by
Dr.'s Miller and Ziegler, and we agree with that conclusion. In particular, we find it
persuasive that the District incorporated many of the recommendations offered by
Dr.'s Miller and Ziegler into K.E.'s IEPs. See G.D. v. Westmoreland Sch. Dist.,
930 F.2d 942, 947 (1st Cir. 1991). We also note the testimony of K.E.'s special
education teacher and case manager for third-grade, who stated that the IEP team
considered "all" of Dr. Ziegler's recommendations at a March, 2007, IEP team meeting
and made the "significant change" to add EA support to K.E.'s IEP because "it was one
of the recommendations [made] in [that] outside evaluation." K.E.'s special education
teacher and case manager for the fourth grade testified similarly with respect to an IEP
team meeting that took place the next year, and her notes from that meeting, as well,
reflect that the team had considered Dr. Ziegler's evaluation. It is true that the District
did not incorporate into K.E.'s IEPs all of the recommendations that Dr.'s Miller and
Ziegler offered in their respective evaluations. But the IDEA requires only that an IEP
team "consider," not "incorporate," such evaluations when developing an IEP, see
20 U.S.C. § 1414(d)(3)(A)(iii), and the record shows that the District satisfied that
requirement here.
The record is equally clear that the District also considered the evaluation and
recommendations of Dr. Unal. In coming to a similar conclusion, the district court
relied heavily on the testimony of IEP team members, who stated that they "considered,
took into account, and accommodated the reported mood and bipolar disorders" that
Dr. Unal had diagnosed. Meeting notes from an IEP team meeting in February of
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K.E.'s fifth-grade year lend further support to this testimony, as they indicate that the
"agenda" for that meeting included reviewing the "request for a shortened school day"
and "discussion and consideration" of the "recommendations made by Dr. Unal." The
notes also contain a detailed account of the discussions that the IEP team had on those
topics, and they show that the team attempted to contact Dr. Unal via telephone during
the meeting in the hope that she would agree to participate in those conversations.
That Parent decided not to attend that meeting is not the District's fault. In fact,
the record shows that the District attempted to schedule four different IEP team
meetings – the first time in September of K.E.'s fifth-grade school year and then in the
months that followed – to discuss Dr. Unal's recommendations. Parent or counsel for
K.E. cancelled two of these meetings, they walked out of the January meeting over a
dispute about the agenda, and they decided simply not to attend the meeting in
February. Parent also refused to approve two proposed IEPs that the team developed
during the January and February meetings, both of which incorporated many of
Dr. Unal's recommendations. Where a parent has "truncated [her] own procedural right
to contribute to the development of [a child's] IEP," a school district "cannot be faulted
for failing to engage in an open discussion." Blackmon v. Springfield R-XII Sch. Dist.,
198 F.3d 648, 657 (8th Cir. 1999). The record is clear in this case that it was Parent,
not the District, who refused to participate in the IEP process, and thus any failure to
engage in a more "open discussion" about Dr. Unal's evaluation and recommendations
belongs with Parent, and Parent alone. See id.Finally, K.E. argues that the District violated IDEA procedures by creating IEPs
that were deficient in various respects. In so arguing, however, K.E. reasserts many
of the arguments that she brought unsuccessfully before the district court. As we agree
with the district court's well-reasoned disposition of these issues in all relevant
respects, we undertake only a limited discussion of them.
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K.E. first maintains that her IEPs were deficient because they failed to set forth
her deficits in organizational skills and explain how they affected her academic
achievement and functional performance. Under the IDEA, an IEP must include a
statement of "how the child's disability affects the child's involvement and progress in
the general education curriculum." 20 U.S.C. § 1414(d)(1)(A)(i)(I)(aa). K.E.'s IEPs
addressed her deficits in organizational skills mainly with respect to a goal designed
to improve her independent work skills in the areas of "organization, time
management, [and] following directions." As part of that goal, K.E.'s IEPs explained
that she had been diagnosed with both fetal alcohol effect and ADHD, and that those
disabilities commonly cause challenges in the areas of "attention, organization,
retention of skills/information, generalization, following directions, cause and effect
relationships, social interactions, and the ability to refrain from impulsive behavior."
The IEPs then stated that K.E. suffered "significant disability" in several of those
identified areas, including retaining information day-to-day, rushing through school
work, following directions, and being organized and staying on task. The IEPs added
that K.E.'s difficulties in those areas caused her to require "excessive staff assistance"
and one-to-one "repeated directions and guidance." Sections of the IEP that discussed
other goals similarly explained how K.E.'s deficits in organizational skills affected her
performance in other academic subjects as well, including the fact that K.E. struggled
with organizing sentences and paragraphs (writing-and-spelling-skills goal) and that
she had difficulty determining which steps to follow when solving math story problems
(math-skills goal). All of these statements are more than sufficient to explain how
K.E.'s organizational deficits affected her ability to learn.
K.E. next contends that her IEPs were deficient because they failed to state
annual goals intended to meet her needs and permit her to make progress in the general
curriculum, and that the District failed to make IEP revisions to allow her to make that
progress. Under the IDEA, an IEP must include "a statement of measurable annual
goals, including academic and functional goals" that is "designed to" meet the needs
resulting from the child's disability so that the child can "be involved in and make
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progress in the general education curriculum" and "meet each of the child's other
educational needs that result from the child's disability." 20 U.S.C.
§ 1414(d)(1)(A)(i)(II). A school district also must revise an IEP as is "appropriate to
address ... any lack of expected progress toward the annual goals and in the general
education curriculum," "the results of any reevaluation," or information about the child
provided by the parents. Id. at § 1414(d)(4)(A)(ii).
K.E. argues that her annual goals violated these requirements because she made
"no demonstrable progress" in the area of organizational skills. As the district court
rightly noted, however, to reach that conclusion it would have to ignore completely
evidence that K.E. progressed in the areas of reading, spelling, and math. Where "the
record indicates that a student's behavioral problems, if unattended, might significantly
curtail [her] ability to learn, the fact that [she] is learning is significant evidence that
[those] behavioral problems have, at least, in part, been attended to." CJN, 323 F.3d
at 642. Here, K.E.'s IEPs stated that her deficits in organizational skills significantly
impeded her ability to learn, and thus her progress in other academic areas strongly
suggests that the annual goals with respect to organizational skills were more than
adequate to meet her needs. See id. Furthermore, the record clearly shows that the
District revised K.E.'s IEPs when she failed to reach those goals. For example, in the
IEP prepared at the end of K.E.'s fourth-grade year, the District added two new
objectives to improve K.E.'s ability to use sensory tools to increase her focus and
attention span, and it incorporated the use of sensory breaks as an adaptation to assist
in achieving that result. The District also incorporated into that IEP the newly-created
BIP, which included various additional adaptations also intended to assist K.E. with
her organizational skills, including preferential seating in the classroom, checking for
clarification with respect to academic tasks, and the opportunity to work in an
alternative room with fewer distractions. Given these revisions, then, and the progress
that K.E. was able to achieve, we do not conclude that the District provided inadequate
annual goals for K.E. or that it failed to revise them as necessary.
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K.E. asserts that her IEPs were deficient because they failed to provide proper
adaptations to address her bipolar disorder. In particular, she contends that the District
"completely disregarded this substantial health disorder" in that it developed IEPs that
provided "no therapeutic services to address her mental health needs." K.E. does not
specify what "therapeutic services" the IEPs failed to provide, but we note that the ALJ
found that the District denied K.E. a FAPE, in part, because it did not give her
necessary psychological and social work services, including monitoring her sleep
patterns, her behaviors observed by Parent, changes in medication, external stressors,
and responses to educational programming. Accordingly, since the district court
rejected the ALJ's decision on that conclusion, we assume that those are the sorts of
services to which K.E. intends to call our attention and which she contends should have
been provided because of her bipolar disorder.
An IEP must set out the "special education and related services" that will be
provided in order to allow the child to make progress toward the IEPs annual goals and
in the general education curriculum. 20 U.S.C. § 1414(d)(1)(A)(i)(IV). Both
psychological and social work services that are needed to help a child "benefit from
special education" qualify as "related services" under § 1401(26)(A). As the district
court correctly noted, however, when the District developed K.E.'s IEPs it had received
contradictory information about whether K.E. suffered from bipolar disorder. The
District also did not yet have the benefit of Dr. Unal's testimony from the
administrative hearing concerning the severity and complexity of K.E.'s mental illness
and the psychological and social work services that might be necessary for the District
to monitor and address it. For those reasons, while we may agree with K.E. that
additional services and adaptations may well be warranted now in light of the
information that Dr. Unal has provided, it would be improper for us to judge K.E.'s
IEPs in hindsight. See Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir.
1990), cert. denied, 499 U.S. 912 (1991); see also CJN, 323 F.3d at 638-39. "An IEP
is a snapshot, not a retrospective," and we must "take into account what was, and was
not, objectively reasonable when the snapshot was taken, that is, at the time the IEP
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was promulgated." Roland M., 910 F.2d at 992. Using that frame of reference, we do
not conclude that K.E.'s IEPs were deficient because they lacked the services and
adaptations that she now contends are necessary.
K.E. further maintains that her IEPs were deficient because they failed to
incorporate many of the adaptations and supports that the District implemented as part
of her educational programming. In particular, K.E. contends that her IEPs failed to
set forth the "extensive modifications" that her teachers used when they assigned her
schoolwork and that they lacked specificity about the District's use of EA staff to assist
K.E., including the frequency, location, and duration of that support. Like she did in
district court, however, K.E. cites no authority for the proposition that a school district
violates the IDEA if it does not set forth every detail about every adaptation that could
provide a child with an educational benefit. We have held, moreover, that an IEP must
provide only "sufficient specialized services" to enable a student to benefit from her
education, and it need not be designed either to "maximize a student's potential or
provide the best possible education at public expense." Fort Zumwalt Sch. Dist. v.
Clynes, 119 F.3d 607, 612 (8th Cir. 1997), cert. denied, 523 U.S. 1137 (1998); see also
CJN, 323 F.3d at 638-39. Because K.E.'s IEPs included specialized services that were
sufficient to enable her to achieve academic progress, we conclude that they were not
deficient for failing to provide additional specificity regarding the adaptations that the
District did provide. See Renollett, 440 F.3d at 1011.
IV.
K.E. also argues that the district court erred by failing to conclude that the
District violated the IDEA's substantive requirement, that is, it denied her a FAPE. To
provide a child with a "free appropriate public education," a school district must give
her "access to specialized instruction and related services" that are "individually
designed" to provide "some educational benefit." Rowley, 458 U.S. at 200-01. Whether
a child can "achieve passing marks and advance from grade to grade" are both
"important factor[s]" when determining whether a school district has developed an IEP
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that is "reasonably calculated" to satisfy the IDEA substantive requirement. Id. at 202-
04; see also CJN, 323 F.3d at 642. But academic progress alone does not mean that
a child has received a FAPE, particularly when that child suffers from a behavioral
disability. See CJN, 323 F.3d at 642. Rather, we must judge each IEP on whether it
is "responsive to the student’s specific disabilities, whether academic or behavioral."
Id.K.E. contends that the District failed to provide her with a FAPE because she did
not make "adequate progress" academically during the relevant time period. As
evidence of this lack of progress, K.E. contends that she failed to meet her IEP goals
with respect to writing skills and that she regressed in her ability to read. She also
asserts that standardized testing revealed that she was "losing ground" academically
in all areas as compared to her peers, and she argues that the District failed to provide
her with adequate educational programming to enable her to overcome, or at least
reduce, this widening gap.
The record, however, does not support this characterization of K.E.'s academic
progress. To the contrary, as the district court explained, K.E.'s progress reports
between the fall of her third-grade year and the end of fourth grade, show that she
made significant progress in reading, spelling, and math. For example, K.E.
progressed in reading from decoding only the most basic of consonant-vowel-
consonant words to decoding 5-6 letter words containing digraphs – two letters
combined to form one sound ("sh" in shout) – and blends – two letters combined with
each retaining a sound ("st" in stand). She also advanced in her reading fluency,
improving from a second-grade reading level at 34 words per minute to a fourth-grade
level at 54 words per minute. K.E.'s ability to spell, as reflected in her weekly spelling
tests, similarly increased, and in math, she progressed from telling time to the half-
hour, reading names on coins, and performing one-digit addition and subtraction
problems, to telling time to the minute, counting change up to two dollars, performing
3-digit addition and subtraction problems, and skip-counting by 2, 5, and 10. And
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standardized test results for K.E. showed her improvement in math, reading, and
language usage, as well.
We acknowledge that K.E. did fail to meet some of her IEP goals during the
relevant time period. We also recognize that K.E.'s test results do not demonstrate the
level of growth that is typical for children of her grade level. But these shortcomings
do not in any way negate the substantial progress that she was able to achieve, and
furthermore, we have held that an IEP "need not be designed to maximize a student’s
potential commensurate with the opportunity provided to other children. The
requirements are satisfied when a school district provides individualized education and
services sufficient to provide disabled children with some educational benefit," and
K.E.’s academic progress clearly shows that she did receive that required level of
educational benefit. M.M. ex rel. L.R. v. Special Sch. Dist. No. 1, 512 F.3d 455, 461
(8th Cir. 2008) (internal quotation marks and citations omitted), cert. denied, 129 S. Ct.
452 (2008).
K.E. also maintains that the District denied her a FAPE because it failed
adequately to address her behavioral disabilities. Under the IDEA, an IEP team must,
"in the case of a child whose behavior impedes the child’s learning or that of others,
consider the use of positive behavioral interventions and supports, and other strategies,
to address that behavior." 20 U.S.C. § 1414(d)(3)(B)(i). And when a team fails to take
this sort of action, that failure can amount to a substantive denial of the child's FAPE.
See Neosho R-V Sch. Dist., 315 F.3d at 1028-29. We concluded that a substantive
violation occurred in Neosho after the district court conducted an independent review
and found that the IEP team failed to adopt or implement anything that would be
"sufficient to amount to a cohesive behavioral management plan," and the record
showed that the child made only "slight" or "de minimis academic and social progress"
and that any educational benefit that the child did receive was then "lost due to [the]
behavior problems that went unchecked." Id. at 1029.
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These circumstances are not present in this case. For example, the District did
create a "cohesive behavioral management plan" for K.E. when it conducted a
functional behavioral assessment and, based on that assessment, developed the BIP.
The District then adopted and implemented that plan when it incorporated the BIP into
K.E.'s IEPs. It is true that experts for both K.E. and the District testified at the
administrative hearing that the assessment and BIP were deficient in some respects; but
given that K.E. enjoyed more than what we would consider "slight" or "de minimis"
academic progress, we cannot conclude that those deficiencies denied K.E. the benefit
of her educational programming. Rather, we agree with the district court that
"[d]espite the severity of her mental illness and the changes in her medical treatment,
K.E. made progress with respect to reading, spelling, and math, received passing
grades in her classes, advanced from grade to grade, and demonstrated growth on
standardized tests" during the time period when the ALJ had concluded that she was
denied a FAPE. And for those reasons, we reject K.E.'s assertion that her behavioral
problems were not sufficiently controlled and prohibited her from receiving a FAPE.
See CJN, 323 F3d at 642-43.
K.E. argues lastly that the District denied her a FAPE because it failed to provide
her with EA support in the classroom as two of the IEPs required. Even though the
District has never denied this, the district court concluded that this failure did not deny
K.E. a FAPE because EA support was not a "significant provision of the IEP."
Houston Indep. Sch. Dist. v. V.P. ex rel. Juan P., 582 F.3d 576, 587 (5th Cir. 2009).
In so concluding, the court reasoned that "[w]hether a provision is significant is
determined in part based on whether the services provided actually conferred an
educational benefit." See id. Since we agree with this reasoning, and we have found
that K.E.'s educational programming did provide her with an educational benefit
despite the absence of EA support in the classroom during her fourth and fifth grade
years, we conclude, as did the district court, that the District's failure to provide this
service did not amount to a substantive denial of a FAPE.
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V.
Accordingly, we affirm the judgment of the district court.
BYE, Circuit Judge, dissenting in part.
The administrative law judge, who presided over the hearing on K.E.’s claim she
was denied free access to public education (FAPE) within the meaning of the
Individuals with Disabilities Education Act (IDEA), concluded the School District
failed to address K.E.’s education-impeding behavioral challenges in her individualized
education plan (IEP), thus preventing K.E. from receiving any meaningful educational
benefit and denying her FAPE. I agree with the ALJ, and in reaching this conclusion,
I suggest this court should be providing due weight to the administrative decision, not
providing deference to the findings and decision of the district court. While I agree
with the majority on several of the issues raised in this appeal, I cannot agree with the
majority’s decision as to whether the district court afforded due weight to the ALJ and
its ultimate conclusion as to whether K.E. made sufficient progress during her second-,
third-, fourth-, and fifth-grade years to demonstrate she received some educational
benefit. I dissent in part because I would conclude the district court failed to give due
weight to the administrative proceedings and, based on an independent review of those
proceedings, I would further conclude the record establishes K.E. was denied FAPE.
I
I do not agree with the majority affording deference to the district court on
factual findings. Ante at 12. There are two levels of review following an
administrative hearing on claims under the IDEA. First, the district court should make
an independent determination of the issues based on a “preponderance of the
evidence,” giving the administrative proceedings “due weight.” Hendrick Hudson
Dist. Bd. of Ed. v. Rowley, 458 U.S. 176, 206 (1982)). “[The] district court must give
consideration ‘to the fact that the state hearing panel has had the opportunity to observe
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the demeanor of the witnesses,’” Blackmon ex rel. Blackmon v. Springfield R-XII Sch.
Dist., 198 F.3d 648, 654-55 (8th Cir. 1999) (quoting Fort Zumwalt Sch. Dist. v.
Clynes, 119 F.3d 607, 610 (8th Cir. 1997)), and should be careful not to “substitute
[its] own notions of sound educational policy for those of the school authorities which
[it] review[s],” because the district court lacks the “specialized knowledge and
experience necessary to resolve persistent and difficult questions of educational
policy.” Rowley, 458 U.S. at 206, 208 (internal quotation marks and citations
omitted).
After the district court has reviewed the administrative proceedings as to
whether a school district offered FAPE, we treat the district court’s decision as a mixed
question of law and fact and review it de novo. C.B. ex rel. B.B. v. Special Sch. Dist.
No. 1, Minneapolis, Minn., 636 F.3d 981, 988-89 (8th Cir. 2011); Fort Zumwalt, 119
F.3d at 611. There are some cases which, like the majority’s opinion, provide a level
of deference to the district court indicating, unless there is a mistake of law, “the
district court’s answer to this mixed fact/law question is reviewed for clear error.” E.S.
v. Indep. Sch. Dist., No. 196, 135 F.3d 566, 569 (8th Cir. 1998) (citing Yankton Sch.
Dist. v. Schramm, 93 F.3d 1369, 1374 (8th Cir. 1996)); accord Gill v. Columbia 93
Sch. Dist., 217 F.3d 1027, 1035 (8th Cir. 2000); Blackmon, 198 F.3d at 655; see also
Mary T. v. Sch. Dist. of Phila., 575 F.3d 235, 241-42 (3d Cir. 2009) (indicating on
appeal from a state administrative decision under IDEA the appellate court reviews the
district court’s factual findings for clear error); N.B. v. Hellgate Elementary Sch. Dist.,
541 F.3d 1202, 1207 (9th Cir. 2008) (“We review the district court’s findings of fact
for clear error even when they are based on the written record of administrative
proceedings.”). I would recognize these differing standards as an intracircuit split of
authority, which I would resolve by choosing the “better approach.” See, e.g., United
States v. LeBrun, 363 F.3d 715, 719 (8th Cir. 2004); Toua Hong Chang v. Minnesota,
521 F.3d 828, 832 n.3 (8th Cir. 2008) (citation omitted) (“When there is an intra-circuit
split, we are free to choose which line of cases to follow.”); but see Williams v. Nat’l
Football League, 598 F.3d 932, 933-35 (8th Cir. 2009) (Colloton, J., dissenting from
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denial of rehearing en banc) (pointing out that other circuits have concluded the better
practice normally is to follow the earliest opinion).
It stands to reason providing any deference to the district court in this context,
in which the district court reviews an administrative decision based only on a written
administrative record, seems misplaced. The district court is in no better position than
an appellate court reviewing a written administrative record to make its independent
judgment. It is the administrative tribunal, not the district court, which takes evidence,
hears witness testimony first-hand, and judges credibility. See Blackmon, 198 F.3d at
654-55 (recognizing it is “‘the state hearing panel [who] has had the opportunity to
observe the demeanor of the witnesses’”) (quoting Fort Zumwalt, 119 F.3d at 611).
Thus, the district court is in no better position than is this court in reviewing the record
and resolving the issues. We have implied this much when defining the standard of
review in cases of similar procedural structure where the district court essentially acts
as the first level of appellate review. As an example, in social security cases it is well
settled our review of the district court’s decision is de novo. Martise v. Astrue, 641
F.3d 909, 920-21 (8th Cir. 2011). We provide no deference to the district court, but
instead focus on the findings and conclusions of the ALJ to determine whether they are
supported by substantial evidence. Buckner v. Astrue, — F.3d —, 2011 WL 2803017at *6 (8th Cir. July 19, 2011). Similarly, on appeal from a bankruptcy matter, we
review the district court’s decision de novo, providing deference to the factual findings
of the bankruptcy court, which heard the witnesses and took evidence in the first
instance. Advanced Control Solutions, Inc. v. Justice, 639 F.3d 838, 840 (8th Cir.
2011) (“[W]e sit as a second court of review in bankruptcy matters, reviewing
interpretations of law de novo, factual findings by the bankruptcy court for clear error,
and matters committed to the bankruptcy court's discretion for an abuse of
discretion.”); In re Reynolds, 425 F.3d 526, 531 (8th Cir. 2005) (“[T]his court sits as
a second court of review; we therefore apply the same standards of review to the
bankruptcy court’s decision as the district court does.”).
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In fact, in the Eighth Circuit, the deferential standard was first applied to our
review of a district court’s decision on an IDEA claim in Yankton School District v.
Schramm, which states “[a] district court’s findings of fact must be upheld unless
clearly erroneous.” 93 F.3d at 1374. However, Yankton, appears to have applied this
deferential standard without explanation, citing Light v. Parkway C-2 School District,
41 F.3d 1223, 1229 (8th Cir. 1994). Notably, Light was a distinctly different type of
case in which parents filed suit directly to the district court challenging the suspension
from school of their handicapped child as a result of the child’s violent behavior. Id.
at 1226. The district court heard testimony first-hand and made its factual
determinations based on its own observation of the witnesses and evidence. Id.Consequently, on appeal, we deferred to the findings of the district court, reviewing
only for clear error. Id. at 1229. Unlike Light, the district court in Yankton, as well
as in the present case, did not preside over the trial, take evidence, or hear and observe
witnesses first-hand. 93 F.3d at 1372. As a result, it seems Yankton may have
improvidently applied this deferential standard to a case where it is not appropriate.
In my opinion, I see no reason to defer to the district court, particularly when the
decision of the ALJ—who did hear witnesses and take evidence—is merely afforded
“due weight.” Instead, I would follow the more logical de novo standard when
reviewing a district court’s decision in a case such as this one. See, e.g., C.B., 636
F.3d at 989 (“We review the district court’s decision de novo.”); T.F. v. Special Sch.
Dist. of St. Louis County, 449 F.3d 816, 818 (8th Cir. 2006) (reviewing the district
court’s decision de novo, giving “due weight to the outcome of the administrative
proceedings”) (internal quotation marks and citation omitted).
The application of a deferential standard in some IDEA cases may be
appropriate where the district court hears additional evidence under 20 U.S.C.
§ 1415(i)(2)(C)(ii). See Lorenzen v. Montgomery County Bd. of Edu., 403 F. App’x
832, 835 n.5 (4th Cir. 2010) (unpublished) (“In appeals under IDEA we generally
conduct a modified de novo review, giving ‘due weight’ to the underlying
administrative proceedings. However our cases also indicated that when a district
-26-
court hears additional evidence in an IDEA proceeding . . ., we apply a clear error
standard of review.”) (internal citations omitted). However, the district court’s
decision in this case was premised only on a review of the written record. And, where
a district court’s decision is based solely on a written record, I would not afford any
deference to its factual findings. I instead suggest this court review the district court’s
decision under the more appropriate de novo standard, standing in essentially the same
position as the district court, “render[ing] an independent decision based on a
preponderance of the evidence in the administrative record, . . . giv[ing] ‘due weight’
to the results of the administrative proceedings and not substitut[ing] its ‘own notions
of sound educational policy for those of the school authorities which they review.’”
C.B., 636 F.3d at 988-89 (quoting Rowley, 458 U.S. at 205-06).
II
Having concluded our review is deferential to the ALJ and not the district court,
I next turn to the issue at hand: whether K.E. was denied FAPE. The district court
determined the School District provided FAPE to K.E., and the majority affirms. In
reaching this conclusion, both the district court and the majority reason the School
District developed IEPs adequately addressing K.E.’s unique needs and K.E. received
some educational benefit. However, these determinations stand in stark contrast to the
findings and conclusions of the ALJ, which I find to be supported by a preponderance
of the evidence and therefore entitled to due weight. See Neosho R-V Sch. Dist. v.
Clark, 315 F.3d 1022, 1028 (8th Cir. 2003) (affirming the district court’s deference to
the administrative panel’s decision where the record supported the decision). In giving
those findings and conclusions due weight, I conclude the IEPs failed to adequately
address K.E.’s needs, inadequately defined necessary services, and were not properly
implemented. As a result, K.E. was denied any meaningful educational benefit and,
accordingly, was denied FAPE. I would therefore reverse the district court in part, and
reinstate the ALJ’s decision on this issue.
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The School District had an obligation to create an IEP reasonably calculated to
provide educational benefit to K.E. See Rowley, 458 U.S. at 203. “IDEA does not
require that a school either maximize a student’s potential or provide the best possible
education at public expense.” Fort Zumwalt, 119 F.3d at 612 (citing Rowley, 458 U.S.
at 203). IDEA is intended, instead, to “open the door of public education to
handicapped children on appropriate terms.” Rowley, 458 U.S. at 192. This court has
held the School District need only provide the student with “‘some educational benefit’
and need not give her the best education possible.” Blackmon, 198 F.3d at 660
(quoting Rowley, 458 U.S. at 200). However, the United States Supreme Court has
qualified the educational benefit must be “meaningful.” Rowley, 458 U.S. at 192. A
student receives FAPE if the education (1) addresses the student’s unique needs, (2)
provides adequate support services to allow the student to take advantage of the
educational opportunities, and (3) is in accord with the individualized education
program. See Rowley, 458 U.S. at 188-89 (defining FAPE as “educational instruction
specially designed to meet the unique needs of the handicapped child, supported by
such services as are necessary to permit the child ‘to benefit’ from the instruction . . .
[and] such instruction and services . . . comport with the child’s IEP”); see also
Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 893 (9th Cir. 1995). I
conclude the School District failed to meet any of these three requirements, and
address them each in turn.
A
First, a school district is required to develop an IEP addressing the unique needs
of a given child. E.S., 135 F.3d at 569 (holding IDEA requires schools to “provide a
‘free appropriate public education’ to all of its disabled students by formulating IEPs
tailored to their unique needs”) (quoting 20 U.S.C. § 1412). A school district is not
required to identify a student’s issues by name or official diagnosis so long as the IEP
properly identifies and addresses the student’s disability. See, e.g., Pachl ex rel. Pachl
v. Seagren, 373 F. Supp. 2d 969, 975 (D. Minn. 2005); see also Cronkite ex rel.
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Cronkite v. Long Beach Unified Sch. Dist., No 97-55544, 1999 WL 196544, at *1 (9th
Cir. Apr. 1, 1999) (unpublished); O’Dell v. Special Sch. Dist. of St. Louis County, 503
F.Supp.2d 1206 (E.D. Mo. 2007). Notably, behavioral issues constitute a unique need
which may negate academic progress if left unattended by an IEP or behavioral
intervention plan. See Neosho, 315 F.3d at 1029-30. According to the ALJ, the
School District failed to address many of K.E.’s unique needs because it failed to
provide adequate goals and adaptations addressing K.E.’s behavioral issues.
The ALJ made several findings to support such a conclusion. Beginning with
the School District’s evaluation in the spring of 2005—K.E.’s first-grade year—the
reports indicated K.E. needed repeated directions, shortened assignments, visual
prompts, additional time for assignments and tests, seating with minimal distractions,
and assistance with organization. The School District determined K.E. was not eligible
for special education services at the time because she lacked a qualifying medical
diagnosis, but in October 2005, once a diagnosis of ADHD was received, K.E. did
qualify for services. Thereafter, an IEP was developed to deal not only with K.E.’s
below-grade-level academic performance, but also to work on her independent work
and social skills. Once K.E. qualified for special education services, the School
District recognized various behavioral challenges in the years to follow in progress
reports, teacher evaluations, and a functional behavior assessment. Beginning in third
grade, evaluations from K.E.’s doctors, which were reviewed by the School District,
indicated K.E. had an impaired ability to follow directions, initiate tasks, manage and
organize classroom materials and complete academic tasks in reading, writing and
math. Even more, one report indicated K.E. suffered from bipolar disorder and
articulated the consequent behavioral challenges. Despite the School District having
reviewed this report, the behavioral challenges were unaddressed in K.E.’s IEPs. As
the ALJ found, the School District made “no acknowledgment that [K.E.’s] mental
health could affect her ability to perform, and no expression of the need to monitor her
mental health.” Administrative Findings ¶¶ 21, 25, Appellant’s Add. at 8-9. The IEP
failed to include any services based on K.E.’s inability to consistently understand cues,
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follow instruction, process information, or comprehend social interactions. As the ALJ
found, “[w]ith the exception of the alternate work setting, there were no adaptations
or strategies to help the Student concentrate on her work or modulate her behavior,
even though each of those issues was identified in the Evaluation Report.”
Administrative Findings ¶¶ 22, 24, Appellant’s Add. at 8-9.
K.E.’s inability to focus in class and be organized persisted in the following
years. Behavior logs from 2007 indicated K.E. regularly failed to bring required
materials to class, homework was often missing, and behavior logs were lost. K.E. also
engaged in disruptive behavior. These issues were minimized on the rare occasion
K.E. was assisted one-on-one by a paraprofessional/educational assistant (“EA”), as
was reported by K.E.’s classroom instructors, but otherwise were repeated on a regular
basis. Without assistance, K.E. often felt overwhelmed or frustrated and had to leave
class or move to a less distracting portion of the room. She was unable to focus on any
one task for more than a few minutes. In 2007, K.E. also experienced an overall
regression in writing and spelling, yet no changes were made to address K.E.’s poor
progress or to consider regularly providing one-on-one EA support despite the marked
improvements made on the few occasions when one was made available. Then, in
reports from 2008, K.E.’s instructors consistently indicated K.E. had difficulty
sustaining attention, following directions, remaining quiet, working independently,
completing assignments and staying organized. K.E. appeared to be impulsive, lacking
self-control, and would shut down if given a reading or writing assignment. She
continued to forget to bring materials to class and she also had difficulty with peers.
One teacher indicated she felt K.E.’s inappropriate behavior was increasing and was
interfering with her education. K.E. even described the 2007-2008 school year as
miserable because she often could not function at school. Yet, despite the lack of
progress on improving or mitigating K.E.’s behavioral challenges under the former and
existing IEPs, nothing was changed.
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Even after receiving a formal diagnosis for bipolar disorder in the spring of
2008, the School District made minuscule changes to the IEP. The disability was
updated from “Other Health Disabilities” to “Emotional or Behavior Disorder,” and the
IEP better reflected K.E.’s ongoing academic challenges. Yet, the functional skills
goals remained the same with no changes to improve her independent work skills. The
IEP did call for access to an EA within the regular classroom, but did not describe the
manner or time for the EA support. Further, the IEP did not address any additional
services to be offered based on this new diagnosis, or strategies to keep K.E. focused
in class, remain quiet, work independently, complete assignments, stay organized, or
maintain self-control.
More than one-half of a year after the School District received K.E.’s formal
diagnosis, the behavioral issues still persisted with little change to K.E.’s IEP. In
January 2009, the classroom instructor noted K.E. still found assignments difficult, she
could not study for tests independently, and she had to be given modified assignments
and tests. She could not focus on one thing for more than a few minutes, refused to do
work she thought would be too difficult, and continued to blurt out and interrupt class.
Throughout K.E.’s time in the elementary school, her IEPs failed to address
these behavior issues. As the ALJ found, “[w]ith the exception of the alternate work
setting, there were no adaptations or strategies to help the Student concentrate on her
work or modulate her behavior, even though each of those issues was identified in the
Evaluation Report.” Administrative Findings ¶ 24, Appellant’s Add. at 8-9. The
adaptations offered in the IEPs were for sensory breaks, repeating instructions,
preferential seating, and other in-class techniques for regaining K.E.’s attention once
it was lost. However, these techniques proved to be inadequate as the IEPs and
progress reports repeatedly noted no improvement in her independent work skills,
organization, or classroom behavior. In April 2008, after the School District was
formally notified of the bipolar diagnosis, it did develop a behavioral intervention plan
to incorporate into K.E.’s IEP, but the plan only “responded” to bad behavior, failing
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to develop methods for avoiding the problematic behavior in the first instance. The
plan proposed use of the “1, 2, 3, Magic” technique which is essentially a system of
warnings, and used positive rewards for good behavior, tracking behavior using
behavior logs. Specifically, the focus of the behavior intervention plan was to deal
with verbal disruptions in class, negative verbal interactions with peers, and physical
aggression toward peers. It did not adequately address the education-impeding
behaviors which prevented K.E. from focusing in class and often causing her to need
to leave the room.
These techniques were insufficient, particularly when considering that, as the
hearing testimony established, a child with a mood disorder like K.E. cannot control
her behavior or appreciate the consequences of bad behavior. As a result, warning and
reward systems will not assist K.E. with her behavioral challenges. Yet, the IEPs and
behavioral intervention plan focused on warning and reward systems, failing to provide
strategies to help K.E. avoid misbehavior from the beginning. They did not include
strategies for a teacher to follow when presenting a lesson in order to keep K.E.
focused or to verify she understood the lesson or instructions. Nor was there any
strategy to increase sensory stimuli in order to keep K.E.’s attention and help decrease
her disruptive behaviors. Further, when independent work began, there were no
strategies to ensure K.E. knew what tasks she should be accomplishing and to help her
remain focused and organized so she did not become disruptive and could remain in
the classroom for as long as possible. Without a plan to avoid a downward behavioral
spiral before it started, K.E. often struggled with being attentive in class and her only
remaining method of recovery from such bouts of bad behavior was to take breaks.
Even with these failures in K.E.’s education plan, the district court found the
IEPs and behavioral intervention plan to be adequate. The crux of the district court’s
determination was its conclusion the School District was not aware of K.E.’s bipolar
disorder because it had only received contradictory information as to whether K.E.
actually suffered from the disorder at the time the education plans were developed, and
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the School District could only act on the information available at the time the IEPs
were created. Consequently, according to the district court, because the School District
only learned of K.E.’s bipolar disorder in 2007 and did not receive a formal diagnosis
until 2008, it was not obligated to address the disorder in her IEPs. The majority has
adopted this conclusion of the district court. Such a reading of the record leads me to
a contrary result, one which is in accord with the ALJ’s findings and conclusions.
The School District did not receive a formal diagnosis before the spring of 2008;
however, prior to such time, the School District was provided several reports—starting
with Dr. Miller’s in 2005—indicating K.E. had been diagnosed with bipolar disorder.
Also, K.E.’s Parent informed the school on several occasions of K.E.’s bipolar
diagnosis, as recorded in K.E.’s 2005 evaluation. During her second-grade year, K.E.
was hospitalized for mental disorder, about which the school was made aware. In the
beginning of her third-grade year, the school nurse received a medical order for
medication administration which clearly indicated K.E. was taking the medicine
because she had been diagnosed as bipolar. And in 2007, Dr. Ziegler’s report, which
was discussed at an IEP meeting, noted K.E.’s diagnosis of bipolar disorder.
Jacqueline Stein, Director of Special Services for the School District, even admitted
awareness of the bipolar diagnosis in 2007 based on Dr. Ziegler’s report. Thus, the
record clearly establishes by a preponderance of the evidence the School District was
informed of K.E.’s bipolar disorder early in her education, supporting the ALJ’s
finding the School District knew of K.E.’s condition and should have accounted for it
in her IEPs and behavior intervention plan.
Even more, as the School District admits in briefing, it is not the formal
diagnosis which determines the make-up of the IEP; it is the child’s unique needs. See
Rowley, 458 U.S. at 188-89; Appellant’s Br. at 25. Both Dr. Miller’s and Dr. Ziegler’s
reports provided in-depth descriptions of K.E.’s symptoms, including lack of ability
to focus, behave, stay engaged in class, and be organized. As detailed above, many of
the behavioral concerns attributed to bipolar disorder were observed and documented
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in K.E.’s progress reports and IEPs yet were left unaddressed. Thus, regardless of
whether the School District had a formal diagnosis, it was fully aware of K.E.’s unique
needs created by the disorder. Yet, the School District failed to adequately address
them. Consequently, regardless of whether the School District was cognizant of K.E.’s
bipolar diagnosis before 2008, it was aware of her education-impeding behavioral
challenges and failed to address them in her IEP and behavioral intervention plan. In
my opinion, this failure deprived K.E. of a significant educational benefit.
B
I would next conclude in addition to failing to account for K.E.’s behavior issues
in the IEPs, the School District also failed to provide necessary psychological and
social work services to monitor K.E.’s mental health and address issues arising from
the cyclical nature of bipolar disorder. Under IDEA law, an IEP must include “a
statement of the special education and related services . . . to be provided to the
child . . . to advance appropriately toward attaining the annual goals” and “to be
involved in and make progress in the general education curriculum.” 20 U.S.C.
§ 1414(d)(1)(A)(i)(IV). Psychological services and social work services are included
in such related services “as may be required to assist a child with a disability to benefit
from special education.” Id. § 1401(26)(A).
K.E. contended the School District failed to provide her with these services, and
the ALJ agreed. The School District disagrees suggesting it could not have provided
any of these extra services because it had not received a formal diagnosis at the time
the disputed IEPs were created. It is recognized an IEP cannot be judged “exclusively
in hindsight” because the court “must take into account what was, and was not,
objectively reasonable when the snapshot was taken, that is, at the time the IEP was
promulgated.” Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990).
However, giving due weight to the findings of the ALJ, and consistent with the
discussion contained in the previous section, the School District was aware of K.E.’s
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bipolar diagnosis and likewise aware her mood disorder affected her ability to focus,
behave, and become educated. The School District could have informed K.E.’s parents
it required a formal diagnosis to address K.E.’s unique needs, however, it did not.
The record establishes K.E.’s mood dysregulation was a common issue both
inside the classroom and during unstructured free time. The School District was aware
from as early as K.E.’s second-grade year the positive behavior incentives and the
warning systems were not improving K.E.’s behavior. Even without the advantage of
hindsight, at a minimum, the School District should have considered psychological and
social work services after receiving Dr. Ziegler’s report in 2007—the end of K.E.’s
third-grade year—in which Dr. Ziegler identified education-impeding behavioral issues
attributable to her mood disorder. It did not, and I would conclude the School
District’s failure to provide, or at least consider, such services interfered with K.E.’s
ability to take advantage of the educational opportunities.
Additionally, as the ALJ found, the School District failed to provide K.E.
necessary paraprofessional (“EA”) services. In reversing the ALJ, the district court
concluded such services were not necessary because the classroom teacher was able
to provide the needed one-on-one attention to K.E. to permit her to learn regardless.
However, based on an independent review of the record, I would conclude otherwise.
The lack of an EA often resulted in K.E. shutting down and declining to participate any
time the classes involved reading and writing or unstructured time. Even more, when
K.E. was in the classroom, she needed to be seated near the teacher, needed directions
repeated, and needed someone to constantly keep her on track. When the teacher was
unable to do this, K.E. would act out, not respond to warnings, and have to take a
break—leaving class and losing education time. Progress reports showed this occurred
two times a day on average. K.E.’s ability to learn was significantly impeded by her
inability to focus. As the ALJ found, and the School District’s own records and teacher
feedback established, one-on-one work with an EA would have helped to correct the
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issue. Without such assistance, K.E. was denied the opportunity to receive any
meaningful educational benefit.
C
Finally, the School District failed to fully implement the terms of the IEP. Even
though the IEP included an EA in some environments during the fourth- and fifth-
grade years, an EA was not provided. The ALJ determined this was a substantive
violation of the IEP and it denied FAPE to K.E. The fact an EA was not provided was
undisputed. Accordingly, this too contributes to the School District’s failure to provide
FAPE.
In sum, I would conclude the School District failed to address each of K.E.’s
unique needs resulting from her bipolar disorder, failed to provide adequate support for
K.E.’s psychological needs and in-class needs, and failed to comply with the IEP as
developed. Accordingly, I would hold K.E.’s IEP was not reasonably calculated to
provide, nor did the implementation of the IEP actually provide, K.E. any meaningful
educational benefit.
III
Nevertheless, the majority holds K.E. was not denied FAPE because, regardless
of any less than adequate plans, denial of special education services, and failure to
provide an EA as listed in the IEP, K.E. made sufficient academic progress. The
majority rejects K.E.’s contention she did not make “adequate progress” academically,
concluding “[t]he record . . . does not support this characterization of K.E.’s academic
progress.” Ante at 20. According to the majority, the record shows K.E. “made
significant progress in reading, spelling, and math.” Id. To support its understanding
of the record, the majority provides specific examples of achievements in each subject
matter from the fall of K.E.’s third-grade year to the end of her fourth-grade year,
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including improvement in her reading fluency as well as in her ability to decode words,
read clocks, count change, perform addition and subtraction, and skip-count. The
majority concludes K.E.’s progress evidences “some educational benefit.” I disagree.
K.E. did make some progress in certain subjects and at certain times during the relevant
years, but K.E. also regressed in some areas and overall her progress was trivial.
In 2005, K.E.’s performance was measured by the School District to be below
grade-level academically, indicating K.E. had below-average cognitive abilities and
working memory. Later, in 2006, K.E. was tested and fell below the levels measured
in 2005. Through the end of her second-grade year, K.E. showed some progress in
reading, but writing and spelling did not improve and K.E. still struggled with
developing accurate sentences using correct capitalization and punctuation. By the end
of second grade, K.E. was able to decode words (although the report does not indicate
which words or what difficulty) with 85% accuracy. She was able to read short stories
orally with 83% accuracy, and answer literal questions about reading passages with
95% accuracy. K.E. could read first-grade material at 46 words per minute with 95%
accuracy. She mastered 92 of the first 100 Fry words (words identified by Edward Fry
as the most used words in reading and writing). With regards to spelling, K.E. met her
goal of spelling words from her spelling list with 98% accuracy, but did not meet her
goal of spelling those words on tests with 85% accuracy. K.E. continued to struggle
with capitalization, beginning her sentences with a capital letter only 60% of the time.
K.E.’s progress report indicated from 2005 to 2006 K.E. made little progress in math
as well as with her functional skills.
In the next year, from 2006 to 2007, K.E. went from reading consonant-vowel-
consonant words with 95% accuracy to reading 5-6 letter words with sound blends
with 90% accuracy. Her reading fluency also improved to reading a second-grade
passage at 80 words per minute with 97% accuracy. Notably, the record does not
indicate whether this reading pace is above- or below-average, but it is an improvement
from her previous year. K.E. did fail to meet her goal of making logical inferences
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based on passages she reads. The objective was carried over to the next year. K.E.’s
ability to read Fry words increased as well. She could read the first 300 Fry words
with as high as 88% accuracy by the end of third grade. However, K.E. regressed in
spelling. She successfully spelled words from her list only 68% of the time, and
completed her tests with only 60% accuracy. K.E. also failed to improve her
capitalization and punctuation, still capitalizing her sentences only 60% of the time.
In math, K.E. was able to read a clock to the half hour with 100% accuracy, and was
able to read coins and determine their value. She was also able to perform one-digit
subtraction with 100% accuracy.
Despite not having met several of her goals the previous year, in the fall of 2007,
at the start of fourth grade, K.E.’s goals were increased. For example, K.E.’s new
goals focused on writing paragraphs even though she could not write complete
sentences correctly. In March 2008, K.E.’s progress report showed some progress in
reading as well as some improvement in spelling, but still no progress in writing. She
continued to have ongoing trouble with capitalization and punctuation, struggled with
writing her own sentences, and had poorly organized paragraphs. The report found her
progress in math to be minimal. Specifically, K.E. had improved her reading slightly,
reading 5-6 letter words with sound blends with 95% accuracy. She was reading at a
fourth-grade level at 54 words per minute and 90% accuracy, and she was reading 105
words per minute with third-grade reading material with 100% accuracy. K.E. did not
make progress on her Fry words, still working to learn the third set of 100. In spelling
K.E. ranged from an 83% to 87% success level on spelling lists and tests. In math,
K.E. learned to tell time to the minute with 85% accuracy. She was also able to
identify coins with 100% accuracy, counting change up to $2.00 with 83% accuracy.
K.E. also began to perform skip counting and performed two-digit subtraction with
80% accuracy. Her classroom teacher indicated K.E. was struggling in all academic
areas. At the end of the school year in 2008, K.E.’s reading performance had declined
with the exception of a small increase in reading fluency and she made some progress
in math, but there was no evidence of progress in writing.
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In sum, each of these progress reports indicate small successes in various
subjects throughout the years. However, when read as a whole, K.E.’s progress
spanning the four relevant academic years was trivial. She progressed from single-
digit to multi-digit addition and subtraction, learned to tell time and count change,
improved reading fluency and pace but continued to lag significantly behind others,
and struggled with spelling and writing.
The lack of progress to be gleaned from these reports is echoed by K.E.’s
standardized testing scores. The school district conducted Northwest Evaluation
Association (“NWEA”) testing several times each year on both reading and math. The
RIT score received on the NWEA test each year is intended to be compared to scores
from previous years’ testing to measure a student’s progress. K.E.’s scores fluctuate
dramatically. Beginning in the winter of K.E.’s second-grade year—the first point in
time relevant to K.E.’s IDEA claims—K.E. had a math score of 180. This score
dropped by the end of the school year to 173. K.E. then regressed over the summer to
a 168, making it back up to a 177 by the spring of 2007, still several points below
where she was in second grade. However, K.E. did make some progress in her fourth-
grade year; she returned in the fall with a 170, but reached 187 by the spring of 2008,
and in January 2009 received a 193. By comparison, however, the average student in
K.E.’s grade started with a 186 in the winter of her second-grade year and rose to a 216
by January 2009. The progress in math seems as though it could be considered
meaningful, but in contrast to her peers, K.E. regressed significantly. Her score in the
winter of her second-grade year placed her in the 33rd percentile of her classmates.
This percent dropped dramatically over the course of the next three years, placing her
in the 6th percentile of her peers by the winter of her fifth-grade year.
K.E. demonstrated a similar progression in her RIT scores in reading, but did
make some positive movement in her percentile rank, albeit a seemingly small
improvement. In the winter of her second-grade year, K.E. scored a 160, which
dropped to 155 by the end of the year, rose to 164 at the end of her third-grade year,
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to 186 in fourth-grade, and finally reached a score of 191 by the winter of her fifth-
grade year. However, like math, K.E. still lagged significantly behind her peers, whose
average score was 210 by the winter of fifth grade. The statistics on K.E.’s annual
progressions in reading indicated she progressed at a slower rate than did her peers,
moving 2 points in her second-grade year, whereas her peers progressed 20 points, then
7 points in her third-grade year compared to her peers’ 17 points, and finally 9 points
in her fourth-grade year in contrast to her peers’ 15 points. In terms of percentile, K.E.
started in the 7th percentile in second grade, dropping to the 1st percentile by the end
of the year, and then hovering between the 1st and 3rd percentile through the end of
her fourth-grade year. K.E. did experience a significant leap from the fall of 2008 to
January 2009—the fall semester of her fifth-grade year—climbing from the 3rd to the
9th percentile.
Relevantly, this information was available to the ALJ during the administrative
hearing. In its findings, the ALJ referenced some of these scores and interpreted K.E.’s
reading progress as “small,” with the math scores showing “more progress.”
Regardless, the ALJ, being fully cognizant of the progress reports and the standardized
testing, found K.E. did not make meaningful progress, “suffer[ing] a loss of
educational benefit.”
Recognizing full well I lack the “specialized knowledge and experience” of the
ALJ in this “difficult question[] of educational policy,” Rowley, 458 U.S. at 206, 208,
I would grant due weight to the ALJ and agree K.E. failed to make sufficient progress.
Essentially, as I review the record, K.E. did make some progress from second to fifth
grade, but when considering her progress spanned four academic years, it becomes
trivial at best. It seems this minimal progress indicates K.E. has an ability to learn and
progress, yet she was unable to make any significant or meaningful strides. When
viewing her progress reports in their entirety from second grade forward, it becomes
evident K.E.’s ability to make any meaningful progress was stifled by her behavior.
She was unable to focus on any one task for more than a few minutes, could not keep
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track of homework assignments, and needed extra time to complete in-class tasks
because she could not focus. In my view, the record provides evidence of only “de
minimus academic and social progress” and “any slight benefit obtained was lost due
to behavior problems that went unchecked and interfered with [K.E.’s] ability to obtain
a benefit from [her] education.” Neosho, 315 F.3d at 1029; see also Fort Osage R-1
Sch. Dist. v. Sims ex rel. B.S., 641 F.3d 996, 1004 (8th Cir. 2011) (concluding a
student who had “consistently progressed under previous IEPs and . . . displayed no
negative behaviors after the first, formal behavioral plan was implemented” received
FAPE because her progress was not “illusory” nor was her “ability to progress
undercut by unaddressed behavioral difficulties”).
IV
In summary, from December 2005 until the time she filed her amended
complaint for a due process hearing in 2009, K.E. suffered from known behavioral
issues which significantly interfered with her ability to derive any meaningful
educational benefit from her schooling. Despite knowing of K.E.’s behavioral
challenges, I would conclude the School District failed to develop an IEP or implement
a behavioral intervention plan capable of conferring some educational benefit upon her.
I would further conclude the record establishes K.E. received no meaningful
educational benefit during the relevant years of schooling, and I would thus hold K.E.
was denied FAPE. I would therefore reverse the district court on this issue, and
reinstate the ALJ’s decision in part.
______________________________
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