United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-1918
___________________________
I.Z.M., by and through his parents and natural guardians, et al.
lllllllllllllllllllll Plaintiffs - Appellants
v.
Rosemount-Apple Valley-Eagan Public Schools,
Independent School District No. 196, et al.
lllllllllllllllllllll Defendants - Appellees
------------------------------
Council of Parent Attorneys and Advocates, Inc.
lllllllllllllllllllllAmicus on Behalf of Appellants
____________
Appeal from United States District Court
for the District of Minnesota - Minneapolis
____________
Submitted: February 8, 2017
Filed: July 14, 2017
____________
Before LOKEN, COLLOTON, and KELLY, Circuit Judges.
____________
LOKEN, Circuit Judge.
I.Z.M. suffers from severe vision problems, a disability entitling him to a “free
appropriate public education” (“FAPE”) under the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. For ninth grade, I.Z.M. attended
Eastview High School, part of Independent School District No. 196 (“the District”),
consisting of the public schools in Rosemount, Apple Valley, and Eagan, Minnesota.
One FAPE requirement is “special education and related services . . . provided in
conformity with the [child’s] individualized education program” (“IEP”). 20 U.S.C.
§ 1401(9)(D). I.Z.M.’s IEP provided that he “will use Braille for all classroom
assignments and instruction” and specified other supplemental aids and services to be
provided. See § 1414(d)(1)(A)(i)(IV), (d)(3)(B)(iii). Upset with the District’s
perceived failures in providing these services, I.Z.M. and his parents, L.M. and T.M.,1
filed a complaint with the Minnesota Department of Education. After a four-day
evidentiary hearing, a state Administrative Law Judge issued a thirty-nine-page Order
and supporting Memorandum concluding that the District provided I.Z.M. a FAPE
and dismissing the complaint.
I.Z.M. then filed this action in federal court for judicial review of the ALJ’s
decision, as the IDEA authorizes. See 20 U.S.C. § 1415(i)(2). The Complaint joined
non-IDEA claims for relief under Title II of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12131 et seq., and § 504 of the Rehabilitation Act of 1973, 29
U.S.C. § 794. The district court2 granted the District’s motions for judgment on the
administrative record on the IDEA claim and for summary judgment on the non-IDEA
claims. I.Z.M. appeals, arguing the court committed errors of law in dismissing each
claim. Reviewing these issues of law de novo, we affirm.
1
I.Z.M. brings this lawsuit by and through his parents. We use the term
“I.Z.M.” to refer individually to the disabled child and collectively to appellants. We
use the parents’ initials only when referring to them individually.
2
The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota.
-2-
I. IDEA Issues.
A. The ALJ rejected I.Z.M.’s claim that the District failed to provide a FAPE
in five distinct ways. In the district court, I.Z.M. challenged the ALJ’s decision on
only two issues, so the others need not be considered. The ALJ stated the two issues:
Whether the School District consistently provided accessible, accurate
and timely instructional material, especially in Braille, such that the lack
of materials denied the Student access to involvement and the ability to
make progress in the general education curriculum and to make progress
on his IEP goals.
Whether the School District timely provided functioning assistive
technology devices and maintained, repaired or replaced those devices
as needed such that the lack of assistive technology denied the Student
access to involvement and the ability to make progress in the general
education curriculum and to make progress on his IEP goals.
I.Z.M. and his parents testified that the District failed to provide accessible
instructional materials to I.Z.M. in a timely manner as well as instruction enabling him
to improve his Braille skills. In her thirty-nine page decision, the ALJ explained at
length why I.Z.M. failed to meet his burden to prove the denial of a FAPE by a
preponderance of the evidence. See M.M. ex rel. L.R. v. Special Sch. Dist. No. 1, 512
F.3d 455, 458-59 (8th Cir.), cert. denied, 555 U.S. 979 (2008). The ALJ found that
“the provisions in the IEP were largely, although not perfectly, implemented.”
Regarding access to Braille materials, although the District did not provide I.Z.M.
Brailled materials one hundred percent of the time, the ALJ found “very little
evidence of times when materials were not available in some accessible format.”
Most failures involved not entire textbooks, but short assignments within I.Z.M.’s
capacity to read with alternative aids and even large print. Regarding provision of
assistive technology, the ALJ found that, although problems arose, “[t]he number of
issues the Student had could be expected given the number and complexity of the
-3-
devices the Student was provided,” and District staff “were almost always
immediately responsive to the issues.”
Credibility findings were critical to the ALJ’s determination. The ALJ found
that I.Z.M. “tended to generalize and . . . exaggerat[e] the issues that he had at
school.” The ALJ found there were “times when acrimony and accusations [by L.M.]
depleted staff time and energy and took time away from supporting the student.”
When witness testimony conflicted, the ALJ credited the District’s witnesses. Based
on this testimony, the ALJ found that I.Z.M. was capable of reading Braille, but often
chose not to do so, and concluded his lack of progress in reading Braille3 did “not
negate the fact that he received significant educational benefit from his participation
and progress in his classes at the School District.” I.Z.M. “continued to make
progress in the regular education curriculum and even in Honors classes,”4 and “met,
and often exceeded, the ability to communicate with the proficiency of his peers.”
The ALJ found “that the School District implemented the Student’s IEP such
that the Student received educational benefit.” The District “took all reasonable steps
to provide instructional materials to the Student in accessible formats and at the same
time as the other children received instructional materials.” I.Z.M. failed to prove that
any lack of accessible materials denied him “access to involvement and the ability to
3
One IEP goal was for I.Z.M. to “increase his average [Braille] reading rate
from 80 to 95 words per minute.” Over the course of I.Z.M.’s ninth-grade year, his
Braille reading speed dropped from 80 to 40 words per minute.
4
In May 2015, near the end of the ninth-grade year, I.Z.M.’s grade point average
was 3.337 and he ranked 333 out of 580 students in his class. In his first quarter,
I.Z.M. received an A in Academic Prep, Choir, and Independent Fitness; a B+ in Earth
Science, Honors American Government, and Honors Geometry; and a P in Honors
English. In his second quarter, he received an A in Academic Prep and Choir; a B+
in Wellness; a C+ in Honors American Government, Honors Earth Science, and
Honors Geometry; and a P in Honors English.
-4-
make progress in the general educational curriculum and to make progress on his IEP
goals.” Based on these detailed findings, the ALJ concluded that the District provided
I.Z.M. with a FAPE and complied with its obligations under the IDEA and state law.
I.Z.M. then commenced this lawsuit.
B. In an IDEA case such as this where there are no procedural issues, the
statute authorizes judicial review of the state hearing officer’s “determination of
whether the child received a [FAPE].” 20 U.S.C. § 1415(f)(3)(E)(i); see
§§ 1415(b)(6) and (i)(2)(A); Board of Educ. v. Rowley, 458 U.S. 176, 204-05 (1982).5
A FAPE “consists of 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.” Rowley, 458 U.S. at 188-89. Whether the
District provided I.Z.M. with a FAPE is reviewed de novo. See M.M., 512 F.3d at
458. The reviewing court “must give ‘due weight’ to the outcome of the
administrative proceedings.” T.F. v. Special Sch. Dist. of St. Louis Cty., 449 F.3d
816, 818 (8th Cir. 2006), quoting Rowley, 458 U.S. at 206-07. On appeal, district
court factual findings “are binding unless clearly erroneous.” Gill v. Columbia 93
Sch. Dist., 217 F.3d 1027, 1035 (8th Cir. 2000).
The district court independently reviewed the entire record before the ALJ,
provided a thorough summary of the evidence, and relied on the ALJ’s credibility
determination when the testimony of District witnesses conflicted with that of I.Z.M.
and his parents. The court granted the District’s motion because: (1) significant
evidence showed the District took steps to provide I.Z.M. accessible instructional
materials in a timely manner; (2) to the extent the District may have imperfectly
complied with IEP requirements, the IDEA does not require perfection; and (3) I.Z.M.
5
As the Court noted in Rowley, what is now § 1415(b)(6) also authorizes
complaints concerning “any matter relating to the identification, evaluation, or
educational placement of the child.” There are no such issues in this case. I.Z.M.
challenges only the District’s implementation of an appropriate IEP.
-5-
received an educational benefit from the services the District provided, as reflected by
his grades. To the extent the evidence showed a lack of progress on I.Z.M.’s Braille
reading speed, the district court agreed with the ALJ that this was more likely due to
I.Z.M.’s persistence in reading visually rather than tactually.
C. On appeal, I.Z.M. argues the district court applied the wrong legal standards
in upholding the ALJ’s decision. First, with respect to the IEP provision requiring
Braille instruction, I.Z.M. argues that the Minnesota Blind Persons’ Literacy Rights
and Education Act, Minn. Stat. § 125A.06, imposed on the District an “absolute
obligation,” enforceable in an IDEA lawsuit, to provide instruction in Braille reading
and writing that enables each blind student to communicate with the same level of
proficiency expected of the student’s peers. Second, with respect to the IEP provision
requiring accessible instructional materials, I.Z.M. argues that a federal Department
of Education regulation, 34 C.F.R. § 300.172, requires strict compliance that is not
satisfied by a determination merely that the student made some educational progress.
We reject both contentions and affirm dismissal of I.Z.M.’s IDEA claims.
1. I.Z.M.’s first contention is based on the well-recognized principle that, if
state law raises the standard for a FAPE, then students can enforce the heightened
standard in an action under the IDEA. Gill, 217 F.3d at 1035. The Minnesota Blind
Persons’ Literacy Rights and Education Act provides in relevant part: “Instruction in
Braille reading and writing must be sufficient to enable each blind student to
communicate effectively and efficiently with the same level of proficiency expected
of the student’s peers of comparable ability and grade level.” Minn. Stat.
§ 125A.06(d). The operative language is instruction “sufficient to enable” the blind
person to communicate proficiently. I.Z.M. argues, with no supporting Minnesota
case law or agency interpretation, that the statute imposes an “absolute obligation” on
the District. In other words, I.Z.M. contends, the Minnesota statute and therefore the
IDEA are violated if, after receiving Braille instruction called for in the IEP, the blind
student is unable to communicate with the level of proficiency of his peers.
-6-
We conclude that Minn. Stat. § 125A.06(d), by its plain language, does not
impose a heightened standard that burdens school districts with an absolute obligation
to guarantee that each blind student will use the Braille instruction provided to attain
a specific level of proficiency. Rather, the obligation enforceable under the IDEA is
to provide, if the IEP so requires, instruction that is “sufficient to enable” the child to
attain the specified level of proficiency. That is consistent with generally applicable
IDEA standards. See Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. Re-1, 137
S. Ct. 988, 1001 (2017) (IDEA “requires an educational program reasonably
calculated to enable a child to make progress appropriate in light of the child’s
circumstances”); K.E. ex rel. K.E. v. Indep. Sch. Dist. No. 15, 647 F.3d 795, 809 (8th
Cir. 2011) (student’s specialized services not deficient if they were “sufficient to
enable her to achieve academic progress”). As the Supreme Court observed in
Endrew F., “the statement [in Rowley] that the Act did not ‘guarantee any particular
level of education’ simply reflects the unobjectionable proposition that the IDEA
cannot and does not promise ‘any particular [educational] outcome.’ No law could do
that -- for any child.” 137 S. Ct. at 998 (citations omitted).
In this case, the ALJ found that the District provided Braille instructions and
materials, though not always in a timely manner; that I.Z.M. was capable of reading
Braille, but often chose not to do so; that his lack of progress in reading Braille did
“not negate the fact that he received significant educational benefit from his
participation and progress in his classes at the School District”; and that he “met, and
often exceeded, the ability to communicate with the proficiency of his peers,” the
attainment standard in Minn. Stat. § 125.06(d). Though I.Z.M. disagreed with these
findings and conclusions, and argued to the district court that the ALJ’s decision “is
not supported by the evidence,” I.Z.M. does not raise this issue on appeal.
2. A Department of Education regulation provides that, to receive federal
funds, state educational agencies “must ensure that all public agencies take all
reasonable steps to provide instructional materials in accessible formats to children
-7-
with disabilities who need those instructional materials at the same time as other
children receive instructional materials.” 34 C.F.R. § 300.172(b)(4). I.Z.M. argues
that this regulation creates a heightened “strict” compliance standard that must govern
IDEA lawsuits. I.Z.M. cites no case supporting this contention, and the plain
language of the regulation -- public agencies should take “all reasonable steps” -- is
consistent with our prior cases, applying the Supreme Court’s decision in Rowley and
holding that “a school need not maximize a student’s potential or provide the best
possible education at public expense.” Park Hill Sch. Dist. v. Dass, 655 F.3d 762, 766
(8th Cir. 2011) (quotation omitted); see CJN v. Minneapolis Pub. Schs., 323 F.3d 630,
642 (8th Cir.) (the IDEA does not “guarantee that the student actually make any
progress at all”), cert. denied, 540 U.S. 984 (2003). After oral argument, the Supreme
Court again took up the IDEA substantive requirements first addressed in Rowley,
concluding that “[t]o meet its substantive obligation under the IDEA, a school must
offer an IEP reasonably calculated to enable a child to make progress appropriate in
light of the child’s circumstances.” Endrew F., 137 S. Ct. at 999. That again is
consistent with reading the regulation as requiring “all reasonable steps,” not perfect
results. Here, the ALJ cited the regulation and expressly concluded that the District
“took all reasonable steps to provide instructional materials in accessible formats in
a timely manner.”
III. ADA and Rehabilitation Act Claims.
Title II of the ADA prohibits public entities from discriminating based on
disability in services, programs, or activities. 42 U.S.C. § 12132. Section 504 of the
Rehabilitation Act provides that “[n]o otherwise qualified individual with a
disability . . . shall, solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance,” 29 U.S.C. § 794(a). These
statutes “provide[] the same rights, procedures, and remedies against discrimination.”
Mo. Prot. & Advocacy Servs., Inc. v. Carnahan, 499 F.3d 803, 812 (8th Cir. 2007).
-8-
I.Z.M. alleges the District violated these statutes by failing to: (1) ensure that
communications with I.Z.M. were as effective as those with other students; (2)
provide timely auxiliary aids and services; (3) give primary consideration to I.Z.M.’s
requests for Braille materials; (4) offer reasonable modifications to prevent
discrimination; and (5) provide educational opportunities to I.Z.M. equal to those
given other students. I.Z.M. argues on appeal that the district court erred in granting
summary judgment dismissing these claims.
The first issue is whether I.Z.M.’s ADA and § 504 claims are precluded by our
decision affirming the dismissal of his fully exhausted IDEA claims. In Independent
School District No. 283 v. S.D. by J.D., we affirmed a district court decision that
ADA and § 504 claims were precluded, explaining:
When that [IDEA] process produces an administrative decision that is
upheld on judicial review under IDEA, principles of issue and claim
preclusion may properly be applied to short-circuit redundant claims
under other laws.
88 F.3d 556, 560 n.3, 562 (8th Cir. 1996) (citations omitted). I.Z.M.’s categorical
contention that these non-IDEA claims cannot be precluded because they are governed
by different legal standards is without merit. “Minor variations in the application of
what is in essence the same legal standard do not defeat preclusion.” Smith v. Bayer
Corp., 564 U.S. 299, 312 n.9 (2011). Thus, preclusion applies if “resolution of the
IDEA claims necessarily resolved” the non-IDEA claims. S.D., 88 F.3d at 562.
As the district court noted, we have held that a disabled student’s § 504 and
ADA claims of “unlawful discrimination” are not precluded if they are “wholly
unrelated to the IEP process.” M.P. ex rel. K. & D.P. v. Indep. Sch. Dist. No. 721,
439 F.3d 865, 868 (8th Cir. 2006). Here, on the other hand, I.Z.M.’s specific claims
of unlawful discrimination all grew out of or were intertwined with allegations that
the District failed to properly implement his IEP, allegations that were necessarily
-9-
resolved in rejecting his IDEA claims. Putting this preclusion issue aside, the district
court concluded, “even if Plaintiffs’ non-IDEA claims are not entirely precluded by
the judgment in favor of the School District on the IDEA claim, they fail as a matter
of law because Plaintiffs have not demonstrated the existence of a genuine issue of
material fact regarding the School District’s bad faith or gross misjudgment.”
“We have consistently held that where alleged ADA and § 504 violations are
based on educational services for disabled children, the plaintiff must prove that
school officials acted in bad faith or with gross misjudgment.” B.M. ex rel. Miller v.
South Callaway R-II Sch. Dist., 732 F.3d 882, 887 (8th Cir. 2013) (quotation
omitted).6 This rule “reflects what we believe to be a proper balance between the
rights of handicapped children, the responsibilities of state educational officials, and
the competence of courts to make judgments in technical fields.” Monahan v.
Nebraska, 687 F.2d 1164, 1171 (8th Cir. 1982). “So long as the state officials
involved have exercised professional judgment, in such a way as not to depart grossly
from accepted standards among educational professionals, we cannot believe that
Congress intended to create liability under § 504.” Id. I.Z.M. and the Council of
Parent Attorneys and Advocates as amicus curiae vigorously argue that Monahan was
misguided and contrary to the purpose of these anti-discrimination statutes. However,
even if we were inclined to revisit Judge Richard Arnold’s opinion in Monahan, as a
panel we are bound by this controlling precedent. See M.Y. ex rel. J.Y. v. Special
Sch. Dist. No. 1, 544 F.3d 885, 889-90 (8th Cir. 2008); Hoekstra By & Through
Hoekstra v. Indep. Sch. Dist. No. 283, 103 F.3d 624, 626 (8th Cir. 1996) (applying the
6
When the alleged discrimination regards the education of disabled students,
other Circuits agree. See C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 841
(2d Cir. 2014); G.C. v. Owensboro Pub. Schs., 711 F.3d 623, 635 (6th Cir. 2013);
D.A. ex rel. Latasha A. v. Houston Indep. Sch. Dist., 629 F.3d 450, 454-55 (5th Cir.
2010); Sellers by Sellers v. Sch. Bd. of City of Manassas, 141 F.3d 524, 529 (4th Cir.
1998).
-10-
bad faith or gross misjudgment standard to district’s failure to provide a disabled
student access to an elevator) .
Applying this standard, the district court concluded that I.Z.M. failed to present
evidence of bad faith or gross misjudgment, explaining:
[T]here is significant evidence demonstrating the steps the School
District took to provide I.Z.M. with his instructional materials and
assistive devices in accessible formats in a timely manner. . . . Thus,
while there may have been instances of statutory noncompliance,
“something more” is necessary to state a claim under the ADA and
Section 504.
As I.Z.M. does not challenge the district court’s analysis under this standard, which
we conclude was the correct standard, the court’s grant of summary judgment
dismissing these non-IDEA claims must be affirmed. See B.M., 732 F.3d at 888.
The judgment of the district court is affirmed.
______________________________
-11-