Independent School District No. 283 v. S.D. Ex Rel. J.D.

___________

No. 95-2497
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Independent School District *
No. 283, *
*
Plaintiff - Appellee, *
*
v. *
*
S.D., by her parents, J.D. *
and N.D.; J.D.; N.D., * Appeal from the United States
* District Court for the
Defendants - Appellants, * District of Minnesota.
*
Linda Powell, Commissioner *
of Education; Gene Mammenga, *
Past Commissioner of Education; *
Robert Wedl, Acting *
Commissioner of Education; *
K.S., Hearing Review Officer, *
*
Defendants - Appellees. *
___________

Submitted: December 15, 1995

Filed: July 2, 1996
___________

Before BOWMAN and LOKEN, Circuit Judges, and WOLLE,* Chief District Judge.
___________

LOKEN, Circuit Judge.

S.D. and her parents1 requested an administrative hearing under the
Individuals with Disabilities Education Act ("IDEA"), 20

*
The HONORABLE CHARLES R. WOLLE, Chief Judge of the United
States District Court for the Southern District of Iowa,
sitting by designation.
1
We use the term "S.D." to refer individually to the learning-
disabled child and collectively to appellants in these proceedings.
U.S.C. § 1400 et seq., when Minnesota Independent School District No. 283
(the "School District") refused to reimburse S.D. for private school
tuition. A state-appointed hearing officer denied reimbursement, but a
hearing review officer granted S.D. this relief. The School District then
sought judicial review in federal court, and S.D. asserted counterclaims
and cross-claims under various federal and state laws.

The district court2 granted judgment on the administrative record,
concluding that the School District had substantially complied with IDEA's
procedural requirements and had provided S.D. "a free appropriate public
education." See 20 U.S.C. § 1400(c); Board of Educ. v. Rowley, 458 U.S.
176, 203 (1982). The court dismissed S.D.'s remaining claims as precluded
by that judgment. On appeal, S.D. argues that the district court erred in
refusing to expand the administrative record, in reversing the state
hearing review officer, and in dismissing the non-IDEA claims. We affirm.

I.

S.D. suffers from severe dyslexia, which impacts her reading and
mathematics skills, and attention deficit disorder, which affects her
concentration and learning. From kindergarten through third grade, S.D.
attended regular classes at Peter Hobart Primary Center, a public
elementary school in the School District. In first grade, an initial
special education assessment suggested that S.D. has average to above
average intelligence, but her reading, writing, comprehension, and
mathematics skills were below her ability. That prompted development of
an individualized education plan ("IEP") for S.D. Under IDEA, an IEP "sets
out the child's present educational performance, establishes annual and
short-term

2
The HONORABLE RICHARD H. KYLE, United States District Judge
for the District of Minnesota, who adopted the report and
recommendation of the HONORABLE RAYMOND L. ERICKSON, United States
Magistrate Judge for the District of Minnesota.

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objectives for improvements in that performance, and describes the
specially designed instruction and services that will enable the child to
meet those objectives." Honig v. Doe, 484 U.S. 305, 311 (1988). See 20
U.S.C. §§ 1401(a)(20), 1414(a)(5).

S.D. continued to be "mainstreamed" in regular classes. She also
began receiving special education services from a licensed learning
disabilities professional and "Chapter One" mathematics instruction under
a federal program designed to reinforce classroom work in a small group
setting. In 1991, while S.D. was in third grade, a psychological
consultant concluded that she is a visually-based dyslexic. She was also
diagnosed as having attention deficit disorder. Later that year, S.D.'s
mother complained that public education supplemented with special education
services was inadequate, but the School District refused to pay tuition at
Groves Learning Center ("Groves"), a private school for children with
learning disabilities. Following a conciliation conference, the School
District agreed to S.D.'s request that the psychological consultant
continue to monitor progress under the IEP.

In March 1992, the IEP was amended to provide summer instruction and
special education in math. S.D.'s parents requested that she be held back
in third grade at Peter Hobart school. The School District recommended she
be placed in third or fourth grade at Susan Lindgren Intermediate School.
After another conciliation conference, the School District agreed to
provide group and private instruction that summer, but not at Groves. In
the fall, S.D. began fourth grade at Susan Lindgren school, with a special
education teacher assigned to help her adjust to the new environment. At
the end of September, S.D.'s parents enrolled her at Groves without the
School District's consent.

S.D. then requested a hearing, challenging the IEPs and seeking
reimbursement for her tuition at Groves. The Minnesota Commissioner of
Education appointed an administrative hearing

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officer. See Minn. Stat. Ann. § 120.17, subd. 3b(e); Minn. R. 3525.4000.
After a twelve-day hearing, the hearing officer made detailed findings of
fact and concluded: (i) "[e]xcept as to enhancing self-esteem," S.D.'s
initial and modified IEPs met the requirement of IDEA and Minnesota law to
provide a free appropriate public education; (ii) if S.D. had not withdrawn
from public school in September 1992, "the IEP would have produced
measurable educational benefit"; (iii) "Groves is not an appropriate
educational placement for [S.D.] . . . because Groves does not provide the
education in the least restrictive environment"; and (iv) the School
District need not reimburse S.D. for tuition at Groves but must remedy IEP
inadequacies by reimbursing S.D. for summer tutoring, attention deficit and
psychological consultations, and self-esteem counseling. The hearing
officer explained:

[S.D.]'s self-esteem is the focal point of most of the
conflicts in this matter. . . . Both sides in this matter
believe that the approach they advocate for [S.D.]'s education
is best for her own self-esteem.

* * * * *

It is interesting to note that the District generally assessed
the same needs as did Groves and that it used virtually all of
the same teaching techniques as are being applied at Groves. .
. . Each setting has its own weaknesses and strengths. In
[S.D.]'s particular case, because of her relatively severe
learning disabilities, it could be debated forever which
program provides the better education for her. But it is not
the duty of public schools to provide the better education. It
is the duty of public schools to provide an appropriate public
education and the District in this case has done that and has
the ability to do that in the future.

S.D. appealed to a hearing review officer. See Minn. Stat. Ann. §
120.17, subd. 3b(g). The review officer reversed. She concluded that
S.D.'s IEPs "were procedurally flawed"; the School District's services "did
not provide educational benefit"; the School District had not provided a
"free appropriate public education"; and Groves "was an appropriate
placement." Although

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the review officer considered it "troubling" that S.D. spends all her time
at Groves with other children with learning disabilities, the review
officer concluded that "the Groves' environment is clearly superior for
[S.D.]'s emotional needs," and therefore the School District must pay for
S.D.'s tuition at Groves.

The School District then commenced this action, seeking judicial
review of the review officer's adverse decision. See 20 U.S.C. § 1415(e).
S.D. asserted counterclaims and cross-claims alleging violations of IDEA,
its state law counterpart, Minn. Stat. Ann. § 120.17, and other laws.3 The
district court granted the School District judgment on the administrative
record, thereby reinstating the hearing officer's decision. Concluding
that the review officer had improperly reweighed the evidence, the court
adopted the findings of the hearing officer "as amply supported by the
preponderance of the evidence." The court further concluded that S.D. had
failed to show "solid justification" for the submission of additional
evidence. Turning to the key substantive issues, the court found that the
School District had provided S.D. a "free appropriate public education" in
a properly mainstreamed, least restrictive environment; "that Groves was
not a proper placement for S.D., within the context of the IDEA"; and
therefore, that the School District need not reimburse S.D. for tuition at
Groves. The court agreed with the hearing officer that the deficiencies
in S.D.'s IEPs were either harmless or remedied by the relief the hearing
officer granted. Finally, the court dismissed S.D.'s counterclaims because
the School District had complied with IDEA and dismissed her cross-claims
because S.D. acquiesced in any

3
Specifically, § 1983 and the Fourteenth Amendment; § 504 of
the Rehabilitation Act, 20 U.S.C. § 706; the Americans with
Disabilities Act, 42 U.S.C. § 12131 et seq.; the Minnesota Human
Rights Act, Minn. Stat. Ann. § 363.03, subd. 5; the Government Data
Practices Act, Minn. Stat. Ann. § 13 et seq.; and negligence.

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administrative delay and suffered no harm from the Commissioner's
appointment process. S.D. appeals.

II.

S.D. first faults the district court for granting the School District
judgment on the 2000-page administrative record. S.D. argues that this was
procedurally improper because there were disputed issues of material fact,
no discovery had been conducted, and S.D. wished to present additional
evidence. Under IDEA, state law governs the administrative hearing process
for challenging a child's IEP. But after exhausting these remedies, an
aggrieved party may seek judicial review in federal court. In conducting
that review, the court "shall receive the records of the administrative
proceedings, shall hear additional evidence at the request of a party, and,
basing its decision on the preponderance of the evidence, shall grant such
relief as the court determines is appropriate." 20 U.S.C. § 1415(e)(2).

Although the statute permits the reviewing court to expand the
administrative record, "[d]ecision on the record compiled before the
administrative agency is the norm . . . so a party that wants the judge to
take evidence rather than decide the case on the record compiled before the
hearing officers had better tell him." Hunger v. Leininger, 15 F.3d 664,
670 (7th Cir.), cert. denied, 115 S. Ct. 123 (1994). Because the reviewing
court must give due weight to the administrative proceedings, "a party
seeking to introduce additional evidence at the district court level must
provide some solid justification for doing so." Roland M. v. Concord Sch.
Comm., 910 F.2d 983, 996 (1st Cir. 1990), cert. denied, 499 U.S. 912
(1991).

In this case, S.D. failed to present "solid justification" to expand
the administrative record. At the initial motion hearing, Magistrate Judge
Erickson asked counsel for S.D. what evidence she

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wished to add to that record. Counsel cited evidence of S.D.'s recent
progress at Groves, including test results, possible court-appointed expert
testimony, and evidence of S.D.'s current emotional state. After that
hearing, it took counsel for the Commissioner months to assemble the
certified administrative record, and a year elapsed before Magistrate Judge
Erickson issued his report and recommendation. Yet during that entire
period, S.D. never submitted proposed additional evidence and never filed
a written motion to supplement the record. Similarly, S.D. complains that
the district court denied discovery regarding state administrative
practices and procedures. But S.D. does not explain how that discovery
might have produced "solid justification" for expanding the administrative
record. In these circumstances, the district court did not abuse its
discretion in basing its judicial review on that extensive record.

Judicial review of agency action may be conducted on the
administrative record even if there are disputed issues of material fact.
Under IDEA, the reviewing court bases its decision on "the preponderance
of the evidence." That is a less deferential standard of review than the
substantial evidence test common to federal administrative law. But it
still requires the reviewing court to give "due weight" to agency decision-
making. Rowley, 458 U.S. at 206. Other circuits have applied this rather
unusual statutory standard in somewhat different fashions. See Neely v.
Rutherford County Sch., 68 F.3d 965, 969 (6th Cir. 1995) ("modified de novo
review"), cert. denied, 116 S. Ct. 1418 (1996); Doyle v. Arlington County
Sch. Bd., 953 F.2d 100, 105 (4th Cir. 1991) (hearing officer findings are
"prima facie correct"); Roland M., 910 F.2d at 990 ("bounded, independent"
judicial review). See also Capistrano Unified Sch. Dist. v. Wartenberg,
59 F.3d 884, 891-92 (9th Cir. 1995). Here, the district court faced the
task of choosing between conflicting findings and conclusions of the
hearing officer and the review officer. The court reviewed the
administrative record and, expressly applying the statutory

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preponderance standard, credited the hearing officer's findings because
that fact-finder had an "opportunity to observe the demeanor of the
witnesses and to render believability determinations." The court then
rejected the review officer's analysis because it did not give sufficient
weight to the views of the School District's professional educators. That
review complied with § 1415(e)(2). See Doyle, 953 F.2d at 105-06.

III.

S.D. next argues that the district court, in reversing the review
officer's decision, "improperly imposed its own views of educational
methodology." In conducting judicial review, "Rowley instructs us that we
may not substitute our own 'notions of sound educational policy for those
of the school authorities.'" Petersen v. Hastings Pub. Schs., 31 F.3d 705,
707 (8th Cir. 1994). We conclude the district court did not violate this
principle.

IDEA enacted a strong preference that handicapped children attend
regular classes with children who are not handicapped. 20 U.S.C. §
1412(5). This gives rise to a presumption in favor of S.D.'s placement in
the public schools. See Mark A. v. Grant Wood Area Educ. Agency, 795 F.2d
52, 54 (8th Cir. 1986), cert. denied, 480 U.S. 936 (1987). Here, the
district court concluded that the review officer had ignored this
presumption, had given insufficient deference to the School District's
educational decisions, and had rejected the hearing officer's well-
supported findings that S.D. had benefitted from the School District's
programs and that her IEP "was reasonably calculated to result in
measurable educational benefit." In reversing the review officer's
decision, the district court enforced the statute's educational policies,
not its own.

In assessing the district court's analysis, we also bear in mind that
the critical issue in this case is whether to reimburse S.D. for private
school tuition. When S.D.'s parents unilaterally

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placed her in Groves, they did so "at their own financial risk."
Burlington v. Department of Educ., 471 U.S. 359, 373-74 (1985). They are
entitled to tuition reimbursement only if public school placement violated
IDEA and placement at Groves was proper under the Act. See Florence County
Sch. Dist. Four v. Carter, 114 S. Ct. 361, 366 (1993); Evans v. District
No. 17, 841 F.2d 824, 832 (8th Cir. 1988). The review officer did not cite
substantive differences between the School District's and Groves's
programs, and did not explain in educational terms why IDEA's preference
for "mainstreamed" public education should be ignored in this case. The
district court properly concluded that the review officer's decision was
inconsistent with core IDEA principles.4

IV.

S.D. next contends that the district court erred in concluding that
the "astounding" number of procedural inadequacies in her IEPs do not
entitle her to greater relief. Congress intended that IDEA's procedural
safeguards be enforced so that parents of a handicapped child will have
adequate input in the development of the child's IEP. See Rowley, 458 U.S.
at 189, 205-06. The district court concluded that the School District
substantially complied with those statutory safeguards. S.D.'s IEPs set
out educational goals and the special services to be provided. The School
District maintained open communications with S.D.'s parents and allowed
them to play an "aggressively participative role" in the development of the
IEPs. And the School District held conciliation conferences to discuss
parental complaints and heeded

4
We reject as totally without merit S.D.'s contention that
Magistrate Judge Erickson erred in consulting medical treatises on
attention deficit disorder. Like many of S.D.'s legal arguments,
this concerns an underlying issue -- whether S.D.'s parents should
have made her take the drug Ritalin -- that is of only marginal
relevance to the issues on appeal.

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parental requests that a psychological consultant and other professionals
be involved in the IEP process.

Having determined that the School District had met IDEA's core
procedural requirements, the court upheld the hearing officer's conclusion
that IEP deficiencies were either harmless or would be remedied by the
reimbursement of certain professional fees. We agree. The critical issue
in this case is whether S.D.'s parents should be reimbursed for
unilaterally placing her in private school. The procedural and technical
deficiencies in the IEPs that were identified by the hearing officer and
the review officer did not materially affect the resolution of that issue.
An IEP should be set aside only if "procedural inadequacies compromised the
pupil's right to an appropriate education, seriously hampered the parents'
opportunity to participate in the formulation process, or caused a
deprivation of educational benefits." Roland M., 910 F.2d at 994. See
Schuldt v. Mankato Sch. Dist. No. 77, 937 F.2d 1357 (8th Cir. 1991), cert.
denied, 502 U.S. 1059 (1992); Evans, 841 F.2d at 830-31. That did not
happen here.

V.

Finally, S.D. argues that the district court erred in dismissing her
state and federal counterclaims as precluded.5 IDEA does not "restrict or
limit the rights, procedures, and remedies available" under other federal
law, but it does require a claimant to exhaust administrative remedies.
20 U.S.C. § 1415(f). When that process produces an administrative decision
that is upheld on judicial review under IDEA, principles of issue and claim

5
We reject S.D.'s contention that appellees waived the
preclusion issue by failing to plead it. Preclusion may be raised
by the court because "benefits of precluding relitigation of issues
finally decided run not only to the litigants, but also to the
judicial system." Studio Art Theatre of Evansville, Inc. v.
Evansville, 76 F.3d 128, 130 (7th Cir. 1996).

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preclusion may properly be applied to short-circuit redundant claims under
other laws. See University of Tenn. v. Elliott, 478 U.S. 788, 796-99
(1986); Plough v. West Des Moines Community Sch. Dist., 70 F.3d 512, 515-16
(8th Cir. 1995).

S.D.'s non-IDEA claims are based upon allegations that the School
District is guilty of (1) an unlawful grade retention policy; (2) illegal
delay in identifying handicapped children; (3) illegal use of Chapter One
funding; (4) illegal charges for summer instruction; (5) failure to ensure
a fair state hearing; (6) failure to provide equal educational opportunity;
and (7) "per se negligence by violating state and federal laws." We agree
with the district court that these claims are precluded by the IDEA
judgment in the School District's favor. This resolution of the IDEA
claims necessarily resolved issues one, two, three, and five in the School
District's favor. Issue six is also precluded by the finding that the
School District complied with IDEA, because Minnesota law is no more
demanding. See Schuldt, 937 F.2d at 1361. Issue four was remedied by the
hearing officer's reinstated order that the School District reimburse S.D.
for summer tutoring. Issue seven adds nothing to the others and in any
event was waived on appeal by S.D.'s failure to contest the district
court's determination that this theory fails to state an actionable claim.
See Primary Care Investors Seven, Inc. v. PHP Healthcare Corp., 986 F.2d
1208, 1212 (8th Cir. 1993).

We have carefully considered the other contentions in S.D.'s brief
on appeal and conclude that each is without merit. The judgment of the
district court is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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