F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 19 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
MOLLY O’TOOLE, by and through
her parents and legal guardians,
KEVIN AND KATHY O’TOOLE,
Plaintiff-Counter-
Defendant-Appellant,
v. No. 97-3125
OLATHE DISTRICT SCHOOLS
UNIFIED SCHOOL DISTRICT NO.
233,
Defendant-Counter-
Claimant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 96-2329-JWL)
Stephen Walker, Beachwood, Ohio (James Germer, Kansas Advocacy Program
Services, Inc., Topeka, Kansas, with him on the opening brief), for plaintiff-
counter-defendant-appellant.
Gregory P. Goheen (Daniel B. Denk with him on the brief), McAnany, Van
Cleave & Phillips, P.A., Kansas City, Kansas, for defendant-counter-claimant-
appellee.
Before ANDERSON and KELLY, Circuit Judges, and BRETT, * District Judge.
ANDERSON, Circuit Judge.
Plaintiff and appellant Molly O’Toole, by and through her parents Kevin
and Kathy Fulgham O’Toole, appeals the district court’s grant of summary
judgment to the defendant Olathe District Schools Unified School District No.
233 in this case involving the Individuals With Disabilities Education Act
(“IDEA”), 20 U.S.C. §§ 1400-1485. 1 Molly had challenged the adequacy, under
both Kansas law and the IDEA, of the educational services provided to her. We
affirm.
The Honorable Thomas R. Brett, Senior District Judge, United States District
*
Court for the Northern District of Oklahoma, sitting by designation
1
The IDEA was substantially amended in 1997. See Individuals with Disabilities
Education Act Amendments of 1997, Pub. L. No. 105-17, 111 Stat. 37 (1997). We have
held that the Amendments do not apply retroactively. Fowler v. Unified Sch. Dist. No.
259, 128 F.3d 1431, 1436 (10th Cir. 1997). Because the events relevant to this case took
place before the effective date of the Amendments, we apply the pre-Amendments
version of the Act, and, unless otherwise indicated, all citations within this opinion are to
that version.
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BACKGROUND
Molly was born on May 6, 1982, and experienced health problems shortly
after her birth. At thirty months of age, she was diagnosed with a hearing
problem and soon thereafter began using hearing aids. Subsequent evaluations
revealed a moderate to severe sensorineural hearing loss in her right ear and a
moderate to profound hearing loss in her left ear.
In the fall of 1988, Molly entered the District’s hearing impaired program
located at Scarborough Elementary School (“SEC”). While she attended SEC, an
individualized educational program (“IEP”) was developed for her, in accordance
with the IDEA. 2 During the 1991-92 school year, Molly was in both a regular and
a resource room at SEC. In the summer of 1992, Molly’s biological mother died.
In October of 1993 her father married Kathy Fulgham, a co-plaintiff in this case.
This case primarily involves the adequacy of the IEP developed for Molly
on February 23, 1993, and subsequently amended on August 23, 1993. The IEP
team which developed Molly’s February IEP included Kevin O’Toole, Kathy
Fulgham, and a multi-disciplinary group of SEC personnel. The district court
2
The IEP is “‘a written statement that sets forth the child’s present performance
level, goals and objectives, specific services that will enable the child to meet those goals,
and evaluation criteria and procedures to determine whether the child has met the
goals.’” Murray v. Montrose County Sch. Dist. RE-1J, 51 F.3d 921, 923 n.3 (10th Cir.
1995) (quoting Association for Community Living v. Romer, 992 F.2d 1040, 1043 (10th
Cir. 1993)).
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described the meeting as “pleasant and congenial.” O’Toole v. Olathe Dist. Schs.
Unified Sch. Dist. No. 233, 963 F. Supp. 1000, 1004 (D. Kan. 1997). At the
conclusion of the February IEP meeting, Mr. O’Toole received a copy of the IEP
and consented to Molly’s continued placement at SEC.
During the months following the February IEP meeting, Mr. O’Toole and
Ms. Fulgham received reports on Molly’s progress. As the district court noted,
“these monitoring reports indicated that [Molly] met certain objectives, made
adequate progress toward certain objectives, and did not make adequate progress
toward other objectives.” Id. The district court further observed, and the record
supports, that “Mr. O’Toole kept in close contact with [Molly’s hearing impaired
teacher Deb] Stryker concerning [Molly’s] academic progress between February
and May of 1993.” Id.
In June of 1993, Mr. O’Toole had Molly evaluated at the Central Institute
for the Deaf (“CID”), located in St. Louis, Missouri. The CID’s report
recommended the following for Molly:
1. Molly is in need of full-time special education as a hearing-
impaired child with children of similar age and ability. Her skills are
insufficient for learning in a regular mainstream class placement.
Placement in a regular fifth grade class in fall 1993 is not
appropriate.
2. Molly is in need of intensive, individualized reading instruction
by teachers experienced with hearing-impaired children.
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3. Molly’s language and reading should be re-evaluated in one year.
Her intellectual abilities should be re-evaluated in three years. She
will continue to require annual hearing and hearing aid evaluations.
4. Molly and her family should be proud of the language level she
has attained despite her profound hearing impairment and her
learning problems. The prognosis for continued improvement in
language is considered good if she is given appropriate special
education. The prognosis for improvement in reading achievement,
even given intensive, individualized instruction, is guarded.
....
6. Molly should continue using her hearing aids in both ears on
volume #3.
Appellant’s App. Vol. 4 at 62-63. The CID’s evaluation included the assessment
that Molly’s “nonverbal intellectual abilities are within the low average range and
her verbal abilities are below the average range. . . . It is likely that Molly has
learning problems in addition to her hearing impairment.” Id. at 62. In July 1993
Molly was accepted as a full-time residential student at the CID. When Mr.
O’Toole inquired about reimbursement for tuition and/or expenses incurred by
attendance at the CID, the District informed him that tuition reimbursement was
unavailable and that it would inquire into expenses reimbursement. Mr. O’Toole
and Ms. Fulgham then requested an IEP meeting in late August.
The District assembled an IEP team consisting of many of the same people
as attended the February IEP meeting, with a few changes. The district court
found that at the August 23 IEP meeting, “the IEP team agreed to follow all of the
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CID’s recommendations.” O’Toole, 963 F. Supp. at 1005. The O’Tooles
challenge this finding. In any event, various changes were made to Molly’s IEP,
and at the end of the meeting, all members of the IEP team except the O’Tooles
recommended that Molly remain at SEC. Mr. O’Toole disagreed and signed a
form terminating the District’s services to Molly. There is some disagreement
about whether Mr. O’Toole was notified of his right to challenge the adequacy of
the IEP through the IDEA’s and Kansas’ due process procedures. The O’Tooles
thereafter enrolled Molly at the CID, where, according to the O’Tooles, she
flourished. At oral argument, her counsel represented that she has subsequently
graduated from the CID and is currently attending the Olathe public schools.
Shortly after the August IEP meeting, the District notified Mr. O’Toole that
his request for reimbursement of expenses for Molly’s attendance at the CID was
denied. Mr. O’Toole and Ms. Fulgham then requested a due process hearing
regarding Molly’s placement at the CID. 3 A thirteen-day hearing took place over
a nine-month period, at the end of which the hearing officer granted the District’s
dispositive motion, concluding that: (1) Kan. Stat. Ann. § 72-962(f) does not
create a greater duty to educate disabled students than does the IDEA; (2) the
O’Tooles suffered no prejudice from the District’s alleged failure to inform them
3
The IDEA permits dissatisfied parents like the O’Tooles to request a due process
hearing before an independent hearing officer. See 20 U.S.C. § 1415(b)(2).
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of their due process rights and they had no right to be informed of the possibility
of reimbursement for the costs of sending Molly to the CID; (3) Molly’s IEPs
adequately set forth annual goals, short term objectives, evaluative criteria, and
present levels of functioning; (4) the O’Tooles failed to establish that the related
special education services were inappropriate, the level of services offered was
inappropriate, or that she was denied necessary services; (5) Molly’s degree of
academic progress did not equate with a denial of the free appropriate public
education (“FAPE”) to which she is entitled under the IDEA; and (6) the IEP
developed in February and amended in August 1993 satisfied the requirements of
both Kansas law and the IDEA.
The O’Tooles appealed the hearing officer’s decision to a reviewing officer
appointed by the state board of education. The O’Tooles requested the
opportunity to present additional evidence. After reviewing the record, the
reviewing officer denied the O’Tooles’ request to present new evidence,
determining that additional evidence was unnecessary.
The reviewing officer then affirmed the hearing officer’s decision on all
but three issues. On those three issues, the reviewing officer found that the
annual goals and objectives, description of related services, and statement of
present levels of functioning generated in the February and August IEPs failed to
meet the procedural requirements of Kansas law and the IDEA. The reviewing
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officer therefore remanded the matter for a determination whether the O’Tooles
were due the prospective relief of requiring that the District comply with all
procedural requirements in developing future IEPs.
The O’Tooles thereafter sought review in federal district court, see 20
U.S.C. § 1415(e)(2), and the District filed a cross-appeal challenging the
reviewing officer’s decision concerning the IEPs’ compliance with the IDEA and
Kansas law and the availability of prospective relief. The district court granted
the District’s motion for summary judgment, holding that: (1) Kan. Stat. Ann.
§ 72-962(f) did not establish a higher educational standard or obligation than the
IDEA; (2) Molly’s IEPs “provided an adequate statement of [her] present
educational performance levels;” (3) Molly’s IEPs “adequately set forth annual
goals;” (4) Molly’s IEPs “adequately set forth short-term instructional objectives
and procedures by which [her] progress could be measured on at least a twelve
week basis;” (5) Molly’s IEPs “contained an adequate statement of what specific
related services [Molly] was to receive;” and (6) the District “has complied with
the IDEA’s procedures and . . . [Molly’s] IEPs were reasonably calculated to
enable [Molly] to receive more than de minimis educational benefits as required
by the IDEA.” O’Toole, 963 F. Supp. at 1012-14. The court also denied the
O’Tooles’ motion for enlargement of time to file a formal written request to
present additional evidence under 20 U.S.C. § 1415(e)(2), finding that the
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O’Tooles’ “counsel did not file this motion prior to the expiration of discovery
and . . . he has failed to show excusable neglect justifying his late filing.”
O’Toole, 963 F. Supp. at 1014-15. The court further held that, procedural
violations aside, the O’Tooles had “failed to justify the need for the additional
evidence.” Id. at 1015.
On appeal, the O’Tooles argue: (1) Kansas has adopted a different and
higher educational standard than that contained in the IDEA, as interpreted by
Board of Educ. v. Rowley, 458 U.S. 176 (1982), and under that higher standard,
Molly was denied a FAPE; (2) her IEPs were inadequate in a variety of ways; (3)
the district court erred in refusing to consider additional evidence; (4) the
exclusion of evidence relating to the impact of the introduction of sign language
in a hearing impaired child’s educational program denies a FAPE and violates the
IDEA’s due process requirements; and (5) the exclusion of additional evidence in
reliance on a local rule of court violates the IDEA.
DISCUSSION
The IDEA is designed to enable children with disabilities to have access to
a FAPE designed to meet their particular needs. See Murray, 51 F.3d at 925. The
Supreme Court has held that the “‘basic floor of opportunity’ provided by the
[IDEA] consists of access to specialized instruction and related services which are
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individually designed to provide educational benefit to the handicapped child.”
Rowley, 485 U.S. at 201 (emphasis added). A state need not provide services
“sufficient to maximize each child’s potential.” Id. at 198. States are, however,
free to provide a higher level of education services if they wish. See Fowler, 128
F.3d at 1438 (“‘State standards that impose a greater duty to educate disabled
children, if they are not inconsistent with federal standards, are enforceable in
federal court under the IDEA.’”) (quoting Seattle Sch. Dist. No. 1 v. B.S., 82 F.3d
1493, 1499 n.2 (9th Cir. 1996)).
“The IEP is the basic mechanism through which th[e] goal [of providing a
FAPE] is achieved for each disabled child.” Murray, 51 F.3d at 925; see also 20
U.S.C. § 1401(a)(20). 4 The IEP is a written statement containing the following:
(A) a statement of the present levels of educational performance of
such child,
(B) a statement of annual goals, including short-term instructional
objectives,
(C) a statement of the specific educational services to be provided to
such child, and the extent to which such child will be able to
participate in regular educational programs,
(D) a statement of the needed transition services . . .,
(E) the projected date for initiation and anticipated duration of such
services, and
(F) appropriate objective criteria and evaluation procedures and
schedules for determining, on at least an annual basis, whether
instructional objectives are being achieved.
4
Among the many provisions amended by the 1997 IDEA Amendments were those
relating to the IEP. As indicated, however, we apply pre-Amendments law to this case.
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20 U.S.C. § 1401(a)(20); see also 34 C.F.R. § 300.346(a).
Judicial review in IDEA cases is not the typical administrative review. The
district court must “independently review the evidence contained in the
administrative record, accept and review additional evidence, if necessary, and
make a decision based on the preponderance of the evidence, while giving ‘due
weight’ to the administrative proceedings below.” Murray, 51 F.3d at 927.
Because we review the district court’s grant of summary judgment, we review the
district court’s decision de novo, applying the same standard as it did.
There is an added wrinkle in this case, however, because the reviewing
officer and the hearing officer disagreed on whether the goals and objectives, the
description of related services, and the present levels of educational performance
set forth in the IEPs met the procedural requirements of the IDEA and Kansas
law. Thus, the question arises whether the “due weight” is to be given to the
conclusion of the reviewing officer or the hearing officer on issues on which they
disagreed.
Some circuits “defer to the final decision of the state authorities,”
observing that “it makes no difference that there may have been some
disagreement among the state officers during the course of the state proceeding.”
Heather S. v. Wisconsin, 125 F.3d 1045, 1053 (7th Cir. 1997) (quoting Thomas v.
Cincinnati Bd. of Educ., 918 F.2d 618, 624 (6th Cir. 1990)); see also Karl v.
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Board of Educ., 736 F.2d 873, 877 (2d Cir. 1984). Other circuits have modified
that general principle slightly, holding that although we should “defer to the
appeals panel rather than the hearing officer in most circumstances,” deference to
a hearing officer rather than a reviewing officer who disagrees with the hearing
officer may be appropriate when “the hearing officer’s findings [are] based on
credibility judgments unless the non-testimonial, extrinsic evidence in the record
would justify a contrary conclusion or unless the record read in its entirety would
compel a contrary conclusion.” Carlisle Area Sch. v. Scott P., 62 F.3d 520, 529
(3d Cir. 1995); see also Fort Zumwalt Sch. Dist. v. Clynes, 119 F.3d 607, 610
(8th Cir. 1997) (“Where there is a conflict between the findings and conclusions
of the hearing panel and the final reviewing officer, a court may choose to credit
the hearing panel’s findings based on observation of the witnesses and reject the
reviewing officer’s analysis if it does not appear to give sufficient weight to the
views of the professional educators.”), petition for cert. filed (U.S. Dec. 29, 1997)
(No. 97-1568); Doyle v. Arlington County Sch. Bd., 953 F.2d 100, 104 (4th Cir.
1991) (disregarding reviewing officer’s finding contrary to hearing officer where
the disagreement was as to credibility of witness who only testified before the
hearing officer). 5
5
The issue of deference to reviewing versus hearing officer arises both in the
context of the reviewing officer’s obligation, if any, to defer to the hearing officer and in
(continued...)
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Thus, we will give “due weight” to the reviewing officer’s decision on the
issues with which he disagreed with the hearing officer, unless the hearing
officer’s decisions involved credibility determinations and assuming, of course,
that the record supports the reviewing officer’s decision. We review any legal
conclusions, however, under our usual de novo standard. We also bear in mind
the Supreme Court’s admonition, often repeated, that “courts must be careful to
avoid imposing their view of preferable educational methods upon the States.”
Rowley, 458 U.S. at 207.
I. Whether Kansas Has a Higher Educational Standard
At the time Molly’s IEPs were developed, Kansas provided as follows:
“Exceptional children” means persons who . . . differ in physical,
mental, social, emotional or educational characteristics to the extent
that special education services are necessary to enable them to
progress toward the maximum of their abilities or capacities.
Kan. Stat. Ann. § 72-962(f)(2) (emphasis added). In 1994, the section was
amended to read as follows:
5
(...continued)
the context of the district court’s, and our court’s, review of the administrative
proceedings. In this case, the District cross-appealed to the district court the issue of
whether the reviewing officer exceeded the scope of his authority to review the hearing
officer’s findings and conclusions. Because the District has not pursued that issue in this
appeal, the issue of deference in this case only arises in our consideration of the “due
weight” to be given the administrative proceedings.
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“Exceptional children” means persons who . . . differ in physical,
mental, social, emotional or educational characteristics to the extent
that special education services are necessary to enable them to
receive educational benefits in accordance with their abilities or
capacities.
Id. (emphasis added). The O’Tooles argue that either version of the statute
imposes a higher standard for the provision of special education services than
Rowley’s “some benefit” standard under the IDEA. While they do not articulate a
precise standard, the O’Tooles appear to argue that Kansas obligates school
districts to provide special education services which will maximize each child’s
potential. We disagree.
First, as another Kansas federal district court judge has stated in rejecting
the identical argument, Kan. Stat. Ann. § 72-962(f)(2) “does not—by its
terms—bind the State of Kansas to anything at all.” Logue v. Shawnee Mission
Pub. Sch. Unified Sch. Dist. No. 512, 959 F. Supp. 1338, 1350 (D. Kan. 1997).
Rather, it simply defines “exceptional children.” It is Kan. Stat. Ann. § 72-966(a)
which obligates school districts to “provide special education services for all
exceptional children who are residents of the school district.” Kan. Stat. Ann.
§ 72-966(a).
Moreover, even were we to assume that § 72-962(f)(2) obligated school
districts to educate exceptional children as defined therein, the language itself
does not compel the conclusion that Kansas has adopted a higher standard than
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that of Rowley. The pre-1994 amendment language defined exceptional children
as those who need services “to enable them to progress toward the maximum of
their abilities.” Requiring “progress toward” their maximum abilities is not
obviously different, and more demanding, than requiring some educational
benefit. Additionally, § 72-961 states the legislative intent behind Kansas’
special education statutes: “It is the purpose and intention of this act to provide
for educational opportunities which will contribute to the development of each
exceptional child in this state in accord with his or her abilities and capacities.”
(emphasis added). That language is comparable to Rowley’s standard, and
certainly indicates the Kansas legislature did not intend to obligate school
districts to maximize the educational opportunities provided to exceptional
children.
Furthermore, while the O’Tooles urge us to make much of the fact that the
amended language defining exceptional children as those requiring services “to
enable them to receive educational benefits in accordance with their abilities,”
seems more similar to Rowley’s standard, we cannot conclude from the fact of the
amendment alone that the earlier standard was higher. 6 Indeed, the parties direct
6
The O’Tooles argue that the amended language, requiring exceptional children to
“receive educational benefits in accordance with their abilities,” is also a higher standard
than the Rowley “individually designed to provide educational benefit” standard. See
Rowley, 458 U.S. at 201. We fail to see any meaningful distinction between receiving
(continued...)
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us to no language either in the statutes themselves or in any legislative history
which explains the standard under either version of the statute, or explains the
reason for the amendment. 7
The O’Tooles further argue that, even if their construction of § 72-962 is
not compelled by the language and timing of amendments to the statute, a Kansas
6
(...continued)
educational benefits in accordance with a student’s abilities and receiving individually
designed educational benefits. The “in accordance with” language of the Kansas statute,
in our view, merely states the obvious—the services must be appropriate for, and
designed to confer educational benefits in the context of, the individual’s particular
abilities or capacities.
7
The O’Tooles point out that Rowley was decided in 1982, and the Kansas
legislature amended § 72-962 several times since then, but did not elect to change the
definition of exceptional children until 1994, when it adopted the “receive educational
benefits in accordance with their abilities” language. They argue these circumstances
indicate that “Kansas quite clearly opted to keep a different standard (“progress toward
the maximum of their abilities or capacities”) than that announced in Rowley until 1994.”
Appellant’s Br. at 26. The cases the O’Tooles cite in support of this argument, City of
Lenexa v. Board of County Comm’rs, 703 P.2d 800 (Kan. 1985) and State v. Coley, 694
P.2d 479 (Kan. 1985), state the principle that in amending a statute the legislature is
presumed to have “acted with full knowledge of judicial decisions concerning the
statute,” City of Lenexa, 703 P.2d at 804, or “with full knowledge and information as to
the subject matter of the statute, as to prior and existing legislation on the subject of the
statute, and as to judicial decisions with respect to prior and existing law.” Coley, 694
P.2d at 482. They do not stand for the proposition that in amending a state statute a state
legislature is unambiguously declining to follow a United States Supreme Court
interpretation of a federal statute.
Furthermore, as the district court held, the pre-1994 amendment language, which
was in effect at the time Molly’s IEPs were written, was enacted before the IDEA and
before Rowley. “[I]t is impossible to infer an intent to expand the federal scheme simply
from the enactment of this statute when the language in question predates the federal
scheme.” Doe v. Board of Educ., 9 F.3d 455, 457-58 (6th Cir. 1993).
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administrative regulation, when read in conjunction with § 72-962, supports their
argument. We disagree. According to the O’Tooles, the particular regulation
provided as follows at the time relevant to this case:
“Least restrictive environment” means educational placement in
which, to the maximum extent appropriate, exceptional children are
placed in educational programs provided the most benefit at the least
distance away from regular educational placement.
Kan. Admin. Regs. § 91-12.22(aa) (emphasis added). 8 The O’Tooles argue that
the emphasized phrase indicates that Kansas has “expressly elected to go beyond
the standards enunciated in Rowley.” Appellant’s Br. at 27. We fail to see how
an administrative regulation, defining “least restrictive environment” as the
placement where an exceptional child receives the most benefit at the least
distance away from a regular placement, evidences an intent to obligate school
districts to provide any particular level of special educational services. Rather, it
appears to be a restatement of the need to balance the obligation to provide a
FAPE with the obligation to place the child in an environment closest to a regular
educational setting.
In sum, absent any other clear indication by the Kansas legislature that it so
intended, neither the language of the relevant statutes, nor the timing and content
of any amendments to those statutes, convinces us that the legislature purposely
8
The regulation has since been amended to delete the emphasized part, upon which
the O’Tooles primarily rely.
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adopted a standard requiring Kansas schools to provide educational services to
exceptional children at a higher level than the IDEA requires. 9
II. Adequacy of the IEPs
In reviewing the adequacy of an IEP, “[w]e begin . . . by asking whether the
State complied with IDEA procedures, including whether the IEP conformed with
the requirements of the Act. We then determine whether the IEP was reasonably
calculated to enable [the student] to receive educational benefits.” Urban v.
9
The O’Tooles also cite a few decisions from other circuits where courts held that
the particular states had adopted higher substantive standards than the Rowley standard.
Those cases are distinguishable from this case. In Burke County Bd. of Educ. v. Denton,
895 F.2d 973 (4th Cir. 1990), the court observed that the North Carolina General
Assembly had specifically stated that it was “the policy of the State . . . to ensure every
child a fair and full opportunity to reach his full potential.” Id. at 983 (citing N.C. Gen.
Stat. § 115C-106(a)). Furthermore, the North Carolina Court of Appeals had held that
North Carolina’s statute imposed a higher duty than did Rowley. See Harrell v. Wilson
County Schs., 293 S.E.2d 687, 690 (N.C. Ct. App. 1982).
Similarly, in David D. v. Dartmouth Sch. Comm., 775 F.2d 411 (1st Cir. 1985), the
First Circuit noted that the Massachusetts Supreme Judicial Court had interpreted state
education law as requiring that special education programs be administered “‘to assure
the maximum possible development of a child with special needs.’” Id. at 423 (quoting
Stock v. Massachusetts Hosp. Sch., 467 N.E.2d 448, 453 (Mass. 1984)).
By contrast, we have no definitive interpretation by a Kansas court of the
substantive standard imposed by Kansas special education statutes, nor has the Kansas
legislature made the kind of broad declaration of policy as did the North Carolina General
Assembly. See Doe, 9 F.3d at 458 (in holding that the state did not impose a higher
standard than the IDEA, the court observed that “there are no Tennessee state court
decisions interpreting the special education statute in the manner suggested by the
appellant”).
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Jefferson County Sch. Dist. R-1, 89 F.3d 720, 726 (10th Cir. 1996) (citation
omitted). We have held, however, that “[t]echnical deviations from the
requirements of section 1401(a)(20) . . . do not render an IEP entirely invalid; to
hold otherwise would ‘exalt form over substance.’” Id. (quoting Doe v.
Defendant I, 898 F.2d 1186, 1190 (6th Cir. 1990)). The Supreme Court has
explained the importance of compliance with the IDEA’s procedural requirements
in this way:
the congressional emphasis upon full participation of concerned
parties throughout the development of the IEP, as well as the
requirements that state and local plans be submitted to the Secretary
for approval, demonstrates the legislative conviction that adequate
compliance with the procedures prescribed would in most cases
assure much if not all of what Congress wished in the way of
substantive content in an IEP.
Rowley, 458 U.S. at 206.
Moreover, if we are evaluating an IEP prospectively only, we agree with
the Third Circuit which has said that “‘the measure and adequacy of an IEP can
only be determined as of the time it is offered to the student, and not at some later
date. . . . Neither the statute nor reason countenance “Monday Morning
Quarterbacking” in evaluating the appropriateness of a child’s placement.’”
Carlisle Area Sch., 62 F.3d at 534 (quoting Fuhrmann v. East Hanover Bd. of
Educ., 993 F.2d 1031, 1040 (3d Cir. 1993)); see also Roland M. v. Concord Sch.
Comm., 910 F.2d 983, 992 (1st Cir. 1990) (“An IEP is a snapshot, not a
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retrospective.”). However, an IEP is a program, consisting of both the written
IEP document, and the subsequent implementation of that document. While we
evaluate the adequacy of the document from the perspective of the time it is
written, the implementation of the program is an on-going, dynamic activity,
which obviously must be evaluated as such. See Dixie Snow Huefner, Judicial
Review of the Special Education Program Requirements Under the Education for
All Handicapped Children Act: Where Have We Been and Where Should We Be
Going?, 14 Harv. J.L. & Pub. Pol’y 483, 493 (1991). Thus, we do not hold that a
school district can ignore the fact that an IEP is clearly failing, nor can it continue
to implement year after year, without change, an IEP which fails to confer
educational benefits on the student.
The Kansas regulations specify in more detail than the relevant statutes
what an IEP must contain:
(1) a statement of the child’s present level of educational
performance. The statement shall include, as appropriate, the
following information about the child: (A) health; (B) vision; (C)
hearing; (D) social and emotional status; (E) general intelligence; (F)
educational performance; (G) communicative status; (H) motor
abilities; and (I) vocational skills;
(2) a statement of annual goals which describe the educational
performance anticipated within a year’s time;
(3) a statement of short-term objectives which are measurable,
and intermediate steps between the present level of performance and
the annual goals;
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(4) objective criteria, evaluation procedures, and data
collection schedules for determining whether the short-term
objectives are being achieved;
(5) a statement of the specific education services and related
services needed by the child, even if not all of these services
currently are available in the local education agency preparing the
IEP. Any unique instructional media, methods, or behavior
management procedures not ordinarily available to all students, but
needed by this particular child for learning, shall be listed;
(6) a description of the extent to which the child will
participate in regular classroom instruction, and other academic and
non-academic environments, with nonexceptional children of the
same age;
(7) the projected date for the initiation of the prescribed
services and anticipated duration of the services, including a
description of any extended school term services to be provided; and
(8) for students age 14 and older, a statement of needed
transition services.
Kan. Admin. Regs. § 91-12-41(f).
The Federal regulations echo the statutory requirements for an IEP, see 20
U.S.C. § 1401(a)(20); 34 C.F.R. § 300.346(a), but Appendix C to Part 300 of the
federal regulations provides more detailed requirements in a question-and-answer
format. 10 In response to a question about the required statement of the child’s
present levels of educational performance, Appendix C leaves the content of such
Appendix C has been rewritten by the Office of Special Education Programs
10
(“OSEP”) in response to the 1997 Amendments. The Appendix C to which we refer
accompanies the pre-Amendments version of the regulations.
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statements to “the discretion of participants in the IEP meetings.” 34 C.F.R.
§ 300 App. C, question 36. It urges, however, the statement to “accurately
describe the effect of the child’s disability on the child’s performance in any area
of education that is affected,” and avoid simple labels like “mental retardation” or
“deafness.” Id. It further says test scores are appropriately included, but they
should be self-explanatory or accompanied by an explanation. “[R]aw test scores
would not usually be sufficient.” Id. Finally, “[t]here should be a direct
relationship between the present levels of educational performance and the other
components of the IEP.” Id.
The Appendix describes the purpose of the goals and objectives
requirement as providing “a way for the child’s teacher(s) and parents to be able
to track the child’s progress in special education. However, the goals and
objectives in the IEP are not intended to be as specific as the goals and objectives
that are normally found in daily, weekly, or monthly instructional plans.” Id.
question 37. The Appendix describes short term instructional objectives as
“measurable, intermediate steps between the present levels of educational
performance . . . and the annual goals,” which can “serve as milestones for
measuring progress toward meeting the goals,” or “provide general benchmarks
for determining progress toward meeting the annual goals.” Id. question 39.
With respect to related services, the Appendix indicates that “[t]he amount of
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services to be provided must be stated in the IEP.” Further, “[t]he amount of time
to be committed to each of the various services to be provided must be (1)
appropriate to that specific service, and (2) stated in the IEP in a manner that is
clear to all who are involved.” Id. question 51.
Finally, in response to the question whether there is a “prescribed format or
length for an IEP,” the Appendix states:
No. The format and length of an IEP are matters left to the
discretion of State and local agencies. The IEP should be as long as
necessary to adequately describe a child’s program. However, as
indicated [above] the IEP is not intended to be a detailed
instructional plan. The Federal IEP requirements can usually be met
in a one to three page form.
Id. question 56 (emphasis added).
A. Compliance with Procedural Requirements
We consider first whether the IEPs conformed to the procedural
requirements of the IDEA and Kansas law.
1. Present Levels of Performance
Molly’s IEPs, as amended, contained a statement of her present levels of
performance in a number of specific areas, including listing her strengths and
needs. It included the pre-printed statement “See Special Ed. file for specialists’
reports.” Appellant’s App. Vol. 4 at 44. It described her general intelligence as
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“low-average to borderline ability.” Id. Under “Educational performance” it
referenced scores ranging from 55 to 77 on various measures of educational
achievement, such as reading and math. Id. They rated her motor skills as 5
years and 10 months. Id. at 66.
The hearing officer determined that the statement of present levels of
educational performance was adequate. The reviewing officer disagreed, finding
that “[t]he strengths and needs listed do not accurately or clearly describe the
effects of M[olly]’s disability on her performance in the areas listed[;] [r]aw
scores are reported to describe present levels of functioning[;] [and] [t]he raw
scores reported are not self-explanatory and no explanation is included on the
IEP.” Review Officer’s Decision at 15-16, Addendum to Appellant’s Br. at 40-
41.
The district court in turn reversed the reviewing officer on this point,
deciding that the O’Tooles “actively participated in the formulation of [Molly’s]
IEPs during which [her] present level of educational performance was thoroughly
discussed and explained.” O’Toole, 963 F. Supp. at 1012. The court’s other
rationale for reversing the reviewing officer on this point was that Molly’s “IEPs
also address all of the issues mentioned in [Kan. Admin. Regs.] § 91-12-41(f)(1)
with the requisite specificity.” Id.
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We agree with the reviewing officer that the IEP does not clearly convey
Molly’s present levels of educational performance in a way that relates those
present levels to her disability, nor does it, on its face, explain the import of the
raw test scores contained therein. However, it does refer to the specialists’
reports, which presumably contain more detail and which the O’Tooles do not
argue were unavailable for reference. Moreover, there is no doubt that Molly’s
parents and her teachers were fully aware of Molly’s present levels of educational
performance and discussed them in detail in formulating her IEPs. Given that one
of the primary goals of the procedural requirements of the IDEA is to ensure
parental participation in the formulation of a child’s IEP, and to ensure that the
program developed actually reflects, and is based upon, the child’s present levels
of performance, we conclude that the statement of present levels of performance
in the IEPs did not violate the procedural requirements of the IDEA and Kansas
law.
2. Annual Goals and Short-Term Objectives
The February IEP listed six annual goals: (1) to improve reading skills;
(2) to improve English language skills; (3) to facilitate academics; (4) to facilitate
language; (5) to improve articulation; and (6) to enhance sport activities.
Appellant’s App. Vol. 4 at 45. It listed three items under “Long-range planning”:
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(1) “improve compliance behavior”; (2) “improve self concept”; and (3) “improve
academic skills.” Id. at 46. To further the first annual goal (improving reading
skills), the IEP listed seven short-term objectives. 11 To implement her second
annual goal (improving English language skills), the IEP listed eight short-term
objectives. 12 To implement her third annual goal (facilitating academics), the
11
These short-term objectives were:
A—demonstrate mastery – 89%– on her end-of-book Whistles & Dreams
test.
B—pronounce each word and use it in a complete oral sentence 4 times
during each unit.
C—demonstrate mastery of Focus Up & Over end of book test of 89%
acc[uracy].
D—sequence correctly or answer [questions] relating to time sequence
with 90% accuracy.
E—answer steps in a process questions with 90% accuracy.
F—show comprehension of her reading selections by being able to draw an
appropriate conclusion to a story with 100% accuracy.
G—correctly identify different referents (he, she, there, . . .) within her
reading selections with 100% accuracy.
Appellant’s App. Vol. 4 at 48. The IEP stated that she was to pursue these short-term
objectives five hours per week. Id.
12
These short-term objectives were:
A—capitalize proper nouns: days & months, I, states & cities, streets, and
names with 90% acc[uracy].
B—use ending punctuation correctly to 100% accuracy (.?)
C—identify nouns with 100% acc[uracy].
D—identify verbs with 100% acc[uracy].
E—Begin a sentence with a capital letter with 100% accuracy.
F—discontinue writing run-on sentences by not using the word “and” in her
writings to 80% accuracy.
(continued...)
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IEP listed five short-term objectives. 13 To implement her fourth annual goal
(facilitating language), Molly’s IEP listed two short-term objectives. 14 To
12
(...continued)
G—write in her journal 3 to 4 times a week.
H—improve her dictionary skills to 100% accuracy to the 3rd letter, lap,
lag, laugh.
Appellant’s App. Vol. 4 at 49. The IEP stated that she was to pursue these short-term
objectives 2½ hours per week. Id.
13
These short-term objectives were:
A—have a modified Social Studies program.
B—be excused from daily science work for the remainder of the 92-93
school year – remaining in the mainstream for “special projects,
presentations, and demonstrations” at her teachers’ discretion.
C—have a modified spelling list [start with 3 words and build up to 10
words].
D—review any vocabulary or concept from within her mainstream classes
as needed.
E—memorize 0-12 multiplication tests to 100% accuracy.
Appellant’s App. Vol. 4 at 50. The IEP stated she was to pursue these short-term
objectives 3½ hours per week. Id.
14
These short-term objectives were:
1) Molly will demonstrate understanding of basic concepts at 90%
accuracy[:] a) row b) farthest c) alike d) skip e) pair f) narrow g) few.
2) Molly will show understanding of the following language structures at
90% accuracy[:]
a) passive-reversible — ex) The boy followed the dog.
b) complex — relative clauses ex) The boy who got hit went
to the nurse.
c) deleted sentences — The boy hit the girl and ran away.
Molly will show understanding of teacher selected vocabulary at 90%
accuracy.
(continued...)
-27-
implement her fifth annual goal (improving articulation), Molly’s IEP listed three
short-term objectives. 15 Finally, to implement her sixth annual goal (enhancing
sports activities), Molly’s IEP listed two short-term objectives. 16
The August 1993 addendum listed five annual goals: 1) to improve social
skills; 2) to present functional level curriculum; 3) to facilitate language; 4) to
improve articulation; and 5) to enhance sports activities. It reduced her time in
regular classes from 56% to 25%. It contained a number of short-term objectives
14
(...continued)
Appellant’s App. Vol. 4 at 51. The IEP stated Molly was to pursue these short-term
objectives for 2½ hours per week.
15
These short-term objectives were:
1) Molly will correctly articulate words from reading units at 90% accuracy
as judged by SLP.
2) Molly will use appropriate loudness of speech as judged by SLP in
speech room 90% of the time.
3) Molly will use s & z and sh in sentences at 90% accuracy.
Appellant’s App. Vol. 4 at 52. The IEP stated she was to pursue these objectives for 2½
hours per week.
16
These short-term objectives were:
A—participate helping with younger children in a physical activity
[younger P.E. class].
B—get involved in an outside sports activity this summer [Dad will set this
up].
Appellant’s App. Vol. 4 at 53.
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to implement each annual goal. 17 It increased the number of related services to be
To implement the goal of improving social skills, the Addendum to the IEP
17
listed:
a. At the end of the first 9 wks Molly will have a “Circle of Friends” with
whom to interact.
b. At the end of the semester, Molly will play a game with peers after
initiating this activity.
c. At the end of the 3rd nine weeks, Molly will appropriately take turns.
d. At the end of the school year she will interact independently with her
circle of friends.
Appellant’s App. Vol. 4 at 72. To implement the annual goal of presenting functional
level curriculum, the Addendum listed the following short-term objectives:
Appropriate curriculum will be identified in all academic areas. This will
be done on a year long basis. Objectives will be successful increments
toward achieving the curriculum.
a. Will demonstrate that she has achieved 25% of the curriculum via
passing assessments at 80% level.
b. Will demonstrate achievement on 50% of her curriculum at semester via
passing assessment at 80% level.
c. Will demonstrate achievement on 75% of her curriculum at 3rd grading
period via passing assessment at 80% level.
d. Will demonstrate achievement on 100% of her curriculum at year end
via passing assessment at 80% level.
Id. at 74. On a page labeled “Recommendations to Enhance the Instructional Program”
the Addendum listed the following:
1. Modify Molly’s curriculum to her functioning level.
2. Consider implementing a “Circle of Friends.”
3. Increase time in Resource Room to 240 minutes/day.
4. Implement small group instruction with students at her functioning level.
5. Occupational Therapist screen current motor functioning.
6. Behavior Specialist consult with team as appropriate.
7. School Social Work services as appropriate.
(continued...)
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made available to Molly.
The hearing officer held that while “more specific or more carefully
tailored information could be provided . . . [t]here is no rational basis to believe
that procedural inadequacies compromised the student’s right to an appropriate
education or that the parents’ opportunity to participate in the formulation process
has been hampered.” Memorandum and Order at 18, Addendum to Appellant’s
Br. at 18. The reviewing officer held that certain of the short-term objectives
listed under the annual goals did not set intermediate steps between the present
levels of performance and the goals and/or did not “include objective criteria or
evaluation procedures and data collection schedules for determining at least every
12 weeks whether the short-term objectives are being achieved.” Review
Officer’s Decision at 14, Addendum to Appellant’s Br. at 39. The officer also
concluded that the five annual goals were inadequate, as they “give the parent
absolutely no idea of what his child is supposed to be able to accomplish within a
year’s time.” Id. at 16, Addendum to Appellant’s Br. at 41. The district court
17
(...continued)
8. School counseling as appropriate.
9. Annual audiology evaluation.
10. Inclusion facilitator as appropriate.
11. Continue current placement with amended goals and recommendation
implemented.
Id. at 70.
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reversed the reviewing officer, stating “[b]ecause there is no legal authority
[requiring the District to set more specific annual goals] and because the
plaintiff’s parents played an active role in the formulation of the plaintiff’s IEP,
the court concludes that the plaintiff’s IEPs adequately set forth annual goals.”
O’Toole, 963 F. Supp. at 1013. With respect to the short-term objectives, the
court concluded that:
[w]hile most of [them] do not contain a specific mechanism under
which [Molly’s] progress is tested every twelve weeks, they all
contain objective criteria by which [her] progress can be measured.
Moreover, the uncontroverted evidence indicates that one of the
[District’s] representatives discussed [Molly’s] progress with Mr.
O’Toole in detail more than once every twelve weeks. Thus,
although [Molly’s] IEPs did not specifically provide for progress
reports every twelve weeks, Mr. O’Toole clearly received such and
then some.
Id.
We agree with the district court that the annual goals and short-term
objectives comply with the procedural requirements of the IDEA and Kansas law.
As the court noted, there is no legal authority requiring a particular level of
specificity in the statement of annual goals. While some of the goals were
general (to facilitate academics, to facilitate language, to present functional level
curriculum), others clearly conveyed an articulable goal—to improve reading
skills, to improve English language skills, to improve articulation, to improve
social skills, to enhance sports activities. Moreover, while we agree that the
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short-term objectives for implementing the annual goals did not contain specific
criteria for evaluating progress at least every twelve weeks, they contained either
explicit or implicit criteria for evaluating general progress toward achieving the
goals. 18 Given that IEPs are not required to provide the level of detail found in
monthly instructional plans, we cannot say that the goals and objectives were
inadequate. While we recognize that “due weight” must be accorded the
reviewing officer’s conclusion of inadequacy, our own review of the record
convinces us that we cannot draw the same legal conclusion from the words
contained in the IEPs.
3. Related Services
A FAPE under the IDEA includes special education and related services, if
necessary. 20 U.S.C. §§ 1412, 1401(a)(18). The regulations define “related
services” as including “transportation and . . . speech pathology and audiology,
psychological services, physical and occupational therapy, . . . counseling
services, . . . school health services, social work services in schools, and parent
18
There is no statutory requirement that evaluation of progress toward the goals be
made every twelve weeks. However, the District’s IEP monitoring forms stated that they
would be completed every twelve weeks. Def.’s Ex. 54, Appellant’s App. Vol. 4 at 56.
The 1997 Amendments require parents to be given progress reports on their child as often
as the school provides such progress reports to parents of non-disabled children. See 20
U.S.C. § 1414(d)(1)(A)(viii)(II)(aa) (as amended).
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counseling and training.” 34 C.F.R. § 300.16(a). State regulations require “a
statement of the specific education services and related services needed by the
child.” Kan. Admin. Regs. § 91-12-41(f)(5).
Molly’s IEPs stated that she would receive speech/language services for 30
minutes per day and transportation services. They also provided that an
occupational therapist would “screen current motor functioning;” Molly would
receive school social work services, school counseling and an inclusion facilitator
“as appropriate;” she would receive an annual audiology evaluation; and a
behavior specialist would consult with the IEP team “as appropriate.”
Appellant’s App. Vol. 4 at 70.
The hearing officer found that “as appropriate” was “not a clear indication
of the level of services to be provided.” Memorandum and Order at 19,
Addendum to Appellant’s Br. at 19. She also found, however, that “[n]o evidence
was introduced that a related service was requested and denied.” Id. The
reviewing officer disagreed with the hearing officer’s ultimate disposition of this
issue, finding that the IEPs did not meet the procedural requirements in the IDEA
and Kansas law for describing the related services, inasmuch as “[o]nly the
description of speech/language services includes a statement of the amount of
services to be provided.” Review Officer’s Decision at 17, Addendum to
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Appellant’s Br. at 42. The district court held that the statement of related
services complied with the IDEA and Kansas law because
[t]he uncontroverted evidence indicates that [the O’Tooles] had
ample opportunity to explore the related services provided to [Molly]
at [Molly’s] IEP meetings and that [Molly] was never denied any
requested related services. Moreover, the statements contained in
the . . . IEPs describing the related services satisfy the requirements
in 34 C.F.R. § 300.346(a)(3) and K[an]. A[dmin]. R[eg]. § 91-12-
41(f)(5).
O’Toole, 963 F. Supp. at 1013-14.
We agree with the reviewing officer that the term “as appropriate” fails
adequately to specify the level of related services the District committed to
provide, as required by the IDEA and Kansas law. However, the record supports
the findings by the hearing officer and the district court that Molly was never
denied any related service her parents sought for her. 19 “It is important to
distinguish between the statement of [related] services in the IEP and the
provision of [related] services.” Urban, 89 F.3d at 726 (emphasis added). While
we do not condone statements that related services will be provided “as
appropriate,” and while we recognize that the District should specify in its IEPs
19
Of course, with respect to the time period after the August IEP meeting, when the
listing of related services “as appropriate” was added to Molly’s IEP, there is no evidence
of the denial of a related service because the O’Tooles placed Molly at the CID. Thus,
there was never an opportunity for the District to fulfill its obligation to provide services
“as appropriate.” With respect to the period before the August IEP meeting, the O’Tooles
present no evidence of the denial of a related service they sought.
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the level at which such services will be provided, we hold that these technical
irregularities did not produce, in this case, a violation of Kansas law or the IDEA.
See id.; see also Roland M., 910 F.2d at 994 (“Before an IEP is set aside, there
must be some rational basis to believe that 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.”).
B. Whether the IEPs Were Reasonably Calculated to Provide a FAPE
Besides having to consider procedural deficiencies, we must also consider
whether the IEPs were reasonably calculated to provide a FAPE and whether
Molly actually received educational benefits. See Urban, 89 F.3d at 726. Both
the hearing officer and the reviewing officer found that Molly made various
degrees of progress during the 1993 school year. While her progress was not
steady in all areas, and her parents testified as to the general difficulties,
emotional and otherwise, that she had with school and school work, the record
fully supports the officers’ conclusions by a preponderance of the evidence. 20
20
The O’Tooles argue that the record shows Molly had made no progress or
actually regressed during the year. They refer us to Defendant’s Exhibits 56 through 62.
Those exhibits in fact show improvement in raw scores on all but one testing instrument.
Appellant’s App. Vol. 4 at 79-85. The O’Tooles suggest that by applying the standard
(continued...)
-35-
The record also supports the finding, made by both administrative officers and the
district court, that Molly’s parents were in constant communication with her
teachers and were aware of Molly’s status at school.
Additionally, the August addendum to Molly’s IEP reflected a real attempt
by the District to respond to the O’Tooles’ frustration with her progress. It
incorporated a number of modifications based upon Molly’s CID evaluation,
reduced her time in the regular classroom, provided more related services, and
modified her curricular goals to reflect her functioning level. We must evaluate
this IEP prospectively only, however, since the O’Tooles’ removal of Molly
immediately following the August IEP meeting rendered the District unable to
actually implement the amended IEP. See Carlisle, 62 F.3d at 534. Viewed from
20
(...continued)
error of measurement, the test data could show regression or lack of progress. They do
not, however, pursue this argument in a helpful way. They do not provide the actual
standard error of measurement for these testing instruments, nor do they explain why
these particular instruments are in fact the type suited to show educational progress.
While the improvement may not have been as great as the O’Tooles wished or expected,
the test scores do not show regression or failure to progress.
Additionally, the District’s IEP monitoring forms show that Molly was making
adequate progress on most of her short-term objectives. Id. at 40, 56. The fact that she
had not fully met most of those objectives does not indicate she was not getting
educational benefit. As indicated, both administrative officers found she had received
educational benefit.
Moreover, we cannot overlook the fact that immediately prior to the time period in
question, Molly’s biological mother had died, and Mr. O’Toole testified that Molly was
understandably adversely affected by that tragedy.
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that perspective, while some of the stated goals were more general than the
O’Tooles desired, we conclude that it was reasonably calculated to provide Molly
with a FAPE. In sum, our review of the record in this case convinces us that
Molly’s IEPs, even if “not optimal,” id. at 535, were calculated to, and did, confer
some educational benefits, as required by the IDEA and Kansas law.
Furthermore, the fact that she made more progress, and by her parents’
account was happier, at the CID, does not compel the conclusion that the CID was
the appropriate placement for her under the IDEA and Kansas law, and that her
IEP as implemented at SEC was inappropriate. As we have said, “‘the
“appropriate” education required by the Act is not one which is guaranteed to
maximize the child’s potential.’” Urban, 89 F.3d at 727 (quoting Johnson v.
Independent Sch. Dist. No. 4, 921 F.2d 1022, 1025-26 (10th Cir. 1990)). And as
the Second Circuit recently acknowledged, “[a] disabled child is ‘not . . . entitled
to placement in a residential school merely because the latter would more nearly
enable the child to reach his or her full potential.’” Walczak v. Florida Union
Free Sch. Dist., __ F.3d __, No. 97-7155, 1998 WL 177971, at *20 (2d Cir. April
16, 1998) (quoting Abrahamson v. Hershman, 701 F.2d 223, 227 (1st Cir. 1983));
see also Heather S., 125 F.3d at 1057 (“The school district is required by the
statute and regulations to provide an appropriate education, not the best possible
education, or the placement the parents prefer.”) (citation omitted); Fort Zumwalt
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Sch. Dist., 119 F.3d at 613 (“IDEA does not require the best possible education or
superior results.”). Accordingly, an IEP is not inadequate “simply because
parents show that a child makes better progress in a different program.” Walczak,
1998 WL 177971, at *21; see also Fuhrmann, 993 F.2d at 1039-40.
We therefore hold that the record supports the conclusion that Molly’s IEPs
were reasonably calculated to confer educational benefit on her and she made
sufficient progress toward achieving her IEP goals in the 1993 school year. The
IDEA and Kansas law require no more.
III. Exclusion of Evidence
The O’Tooles next argue that the district court and the hearing officer
violated the IDEA by refusing to permit them to submit additional evidence,
including evidence “relating to the impact of the introduction of sign language
into a hearing impaired child’s educational program.” Appellant’s Br. at 41.
The O’Tooles first argue the district court erred in refusing to admit
additional evidence, although they do not specify exactly what evidence they
wished to have admitted. 21 As the District points out, the district court actually
denied the O’Tooles’ motion for an enlargement of time in which to file a formal
21
At oral argument the O’Tooles’ counsel suggested that the additional evidence is
evidence on how the introduction of sign language affects the spoken language skills of a
hearing impaired child.
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written request to submit additional evidence. After granting summary judgment
to the District, the district court held that the District’s motion to prevent the
O’Tooles from submitting additional evidence was moot.
20 U.S.C. § 1415(e)(2) provides that the district court in an IDEA case
“shall receive the records of the administrative proceedings [and] shall hear
additional evidence at the request of a party.” We have held that the district court
has discretion to determine if such additional evidence is necessary. See Murray,
51 F.3d at 927; see also Monticello Sch. Dist. No. 25 v. George L., 102 F.3d 895,
901 (7th Cir. 1996); Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 759-60 (3d Cir.
1995); Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1473 (9th Cir. 1993). The
district court denied the O’Tooles’ motion for enlargement of time to file a formal
written request to present additional evidence because their counsel failed to
explain “why he did not timely identify and produce such evidence during the
discovery period, which closed over three months prior to the filing of this
motion.” O’Toole, 963 F. Supp. at 1014. We review motions for an enlargement
of time for abuse of discretion. Buchanan v. Sherrill, 51 F.3d 227, 228 (10th Cir.
1995). We find no abuse of discretion in the district court’s decision in this case
not to enlarge the time in which the O’Tooles could seek to submit additional
evidence.
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The O’Tooles also argue that the hearing officer erred in precluding the
presentation of “evidence as relates to the impact that sign language has on the
development of spoken language skills.” Appellant’s Br. at 41. They
acknowledge that the Supreme Court has said that “once a court determines that
the requirements of the Act have been met, questions of methodology are for
resolution by the States.” Rowley, 458 U.S. at 208; see also Lachman v. Illinois
State Bd. of Educ., 852 F.2d 290, 292 (7th Cir. 1988). They also do not dispute
that, in general, the debate about whether sign language or spoken language is the
best way to educate the hearing impaired involves a dispute about methodology.
The O’Tooles attempt to distinguish Rowley and the other cases by arguing that
this case does not involve a dispute about the methodology to be used in an
appropriate placement, or in choosing between two appropriate placements, but
rather, in this case, the choice of methodology itself renders the District’s
placement (i.e., at SEC) inappropriate.
Despite the O’Tooles’ effort to cast this methodological debate as a debate
about appropriate placement, we conclude that, in reality, the O’Tooles’
complaint relates to the best methodology for educating a hearing impaired child.
That is precisely the kind of issue which is properly resolved by local educators
and experts. Thus, we perceive no error in the hearing officer’s decision not to
permit the introduction of evidence as to which methodology best serves a hearing
-40-
impaired child. 22 We have held that the IDEA was not violated; having held so,
we decline to find error in the refusal by the administrative officers to engage in a
dispute about methodology.
IV. District Court’s Reliance on Local Rule
Finally, the O’Tooles argue the district court erred in relying on its local
rule, D. Kan. R. 56.1, to exclude evidence in its consideration of the District’s
motion for summary judgment. Rule 56.1 requires motions for summary judgment
to identify disputed facts and provide citations to the record in support thereof.
The O’Tooles’ argument appears to be that the district court, in requiring
compliance with Rule 56.1 and excluding evidence submitted in violation of the
rule, somehow violated its obligation under the IDEA to conduct a modified de
novo review of the administrative record and any other materials submitted by the
parties and accepted by the court.
The O’Tooles do not dispute, as they could not, that summary judgment can
be granted in IDEA cases. However, as everyone acknowledges, summary
judgment in such cases is somewhat unusual, in light of the district court’s
obligation to independently review the record and reach a decision based on a
22
As the Supreme Court acknowledged in Rowley, the question of which method
is best for educating the hearing impaired has been “long debated among scholars.”
Rowley, 458 U.S. at 207 n.29.
-41-
preponderance of the evidence. We perceive neither an inherent inconsistency
between following a rule like Rule 56.1 and following the requirements of the
IDEA, nor do we perceive any actual failure by the district court in this case to
exercise its review properly under the IDEA. In any event, we have conducted
our own independent review of the record in affirming the judgment of the district
court.
CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.
-42-
O'Toole Ex Rel. O'Toole v. Olathe District Schools Unified School District No. 233
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