Fort Zumwalt School District v. Clynes

119 F.3d 607, 1997 WL 377653

• Court: Court of Appeals for the Eighth Circuit
• Decided: July 10, 1997
• Docket: 96-2503, 96-2504
• Status: Published

Opinions

MURPHY, Circuit Judge.

This case involves competing interests under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1499. Robert and Ann Clynes sued the Fort Zumwalt public school district to obtain reimbursement for the cost of sending their son Nicholas to a private school for learning disabled children for the 1991-92 and 1992-93 school years. The district court awarded reimbursement to the Clynes, but denied their additional claims for damages and interest. Both sides appeal from the aspects of the judgment unfavorable to them. We affirm in part and reverse in part.

I.

Nicholas Clynes was diagnosed with a learning disability in reading and math when he was in kindergarten at Hawthorne school, which is part of the Fort Zumwalt school district. The school responded by developing an individualized educational plan (IEP) each year as required by IDEA to set out a curriculum to address his disabilities. See 20 U.S.C. § 1414a(5). The IEPs placed Nicholas in a classroom for learning disabled students part of each school day for individualized instruction in reading and math, but he spent the rest of the day with non-disabled students. Nicholas attended Hawthorne from kindergarten through third grade, and each year the school altered the amount of specialized instruction he received in response to his needs.

Nicholas’ parents attended meetings each year in which the IEPs were discussed. The school district provided the Clynes with a written explanation of their rights under IDEA, and Mrs. Clynes later testified that she had read this information. In May 1991, the Clynes met with district representatives to discuss the IEP for 1991-92. They expressed concern with their son’s progress and the way his needs were being addressed at Hawthorne. They did not sign the IEP and told the district that they had enrolled Nicholas for summer school at Churchill, a private school for the learning disabled. Mrs. Clynes testified that she had indicated at the meeting that she preferred postponing any final decision on the IEP until “the first or second week of the fall, at that time I will have more information.” The IEP itself stated that it would be reviewed in September.

During the summer of 1991 Nicholas was admitted by Churchill for the school year that would begin in the fall of 1991. In August the Clynes informed the school district that Nicholas was going to attend Churchill for the 1991-92 school year. He attended the school from the summer of 1991 through at least the spring of 1993.

IDEA requires that a disabled child be provided with access to a free appropriate public education. Board of Educ. v. Rowley, 458 U.S. 176, 203, 102 S.Ct. 3034, 3049, 73 L.Ed.2d 690 (1982). Parents who believe their child’s education falls short of the federal standard may obtain a state administrative due process hearing, and in some cases may be awarded reimbursement to pay for private school costs. See 20 U.S.C. 1415(b)(2) (review process); School Comm. of Burlington, Mass. v. Department of Educ., 471 U.S. 359, 372, 105 S.Ct. 1996, 2003-04, 85 L.Ed.2d 385 (1985) (reimbursement). The final determination of the state administrative process may be appealed to federal district court, 20 U.S.C. 1415(e)(2), and that court is to make an independent decision of the issues based on a preponderance of the evidence, giving “due weight” to the state administrative proceedings. Rowley, 458 U.S. at 205-06, 102 S.Ct. at 3050-51. The level of deference accorded to the state proceedings is less than required under the substantial evidence test commonly applied in federal administrative law cases, but consideration should be given to the fact that the state hearing panel has had the opportunity to observe the demeanor of the witnesses. Independent Sch. Dist. No. 283 v. S.D., 88 F.3d 556, 561 (8th Cir.1996). 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. See id. Finally, courts are not to “substitute their own notions of sound educational policy for those of the school authorities which they review.” Rowley, 458 U.S. at 206, 102 S.Ct. at 3051.

The Clynes invoked the administrative process to seek reimbursement for the cost of sending Nicholas to Churchill for the 1991-92 and 1992-93 school years. At the state hearing, both sides presented testimony and offered documentary evidence, and the hearing panel, composed of two educators and a lay person, applied the federal legal standard under IDEA. The panel denied the Clynes’ claim for reimbursement for both school years, concluding that Nicholas had been making progress at Hawthorne, his disability did not warrant complete segregation from non-disabled students, and the school district was prepared to provide a free adequate public education to Nicholas.

The Clynes appealed this decision to a state level review officer (SLRO). The SLRO stated that it was not clear that the hearing panel had determined whether the education offered to Nicholas by the district was appropriate and that the panel had improperly placed the burden on the Clynes to show that their son was regressing at Hawthorne. The SLRO inferred that the district had not offered an adequate education program for 1991-92 because the panel had proposed significant changes in the 1992-93 IEP as a result of Nicholas’ experience at Churchill. The SLRO described the prior IEPs as “hit and miss” and as not having produced a demonstrable plan of progress. He believed the district had not identified problem areas or applied appropriate resources in order to achieve satisfactory results and that it had not explained why Nicholas’ performance is “the best that can be expected from him.” The SLRO reversed the hearing panel decision with regard to the 1991-92 school year and ordered reimbursement through the end of October 1992.¹ Reimbursement beyond that time would only be available if the Clynes could demonstrate that they had been required to pre-pay tuition at Churchill without the right of refund.

The school district appealed the SLRO’s decision to federal court. After a hearing the district court awarded reimbursement to the Clynes for both the 1991-92 and 1992-93 school years, as well as the 1991 summer school session. The court concluded that the 1991-92 IEP had not offered Nicholas a free appropriate public education and that Nicholas’ education at Churchill complied with IDEA. It examined Nicholas’ grades, test scores, and advancement from grade to grade at Hawthorne and found that Nicholas had not benefited “sufficiently” from his education there and that the 1991-92 IEP was inadequate. The IEP merely increased Nicholas’ time in the learning disabled classroom and continued the past methods of teaching him to read, but it did not sufficiently address his needs or his behavioral problems. The court also believed the 1992-93 IEP did not comply with IDEA requirements because it did not offer appropriate reading instruction, was not designed to enable Nicholas to “recognize and accept his learning disabilities,” and did not offer a completely segregated environment, which the court believed was the only appropriate environment for him. It primarily based its order of reimbursement for the 1992-93 school year, however, on the fact that the IEP had not been developed until after Nicholas had started the year at Churchill, and the Clynes had contracted to pay for the entire year.

II.

Whether a school district has offered a free appropriate public education is a mixed question of fact and law and the district court’s ultimate determination is reviewed de novo. Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 891 (9th Cir.1995) Hampton Sch. Dist. v. Dobrowolski, 976 F.2d 48, 52 (1st Cir.1992); but see Doyle v. Arlington County Sch. Bd., 953 F.2d 100, 105 (4th Cir.1991) (“whether or not a program is appropriate is a matter of fact”). The standard of review in this circuit is de novo as to the ultimate finding of the district court. See Petersen v. Hastings Pub. Sch., 31 F.3d 705, 707-08 (8th Cir.1994).

IDEA requires a school district to offer an educational program “reasonably calculated to enable the child to receive educational benefits.” Petersen, 31 F.3d at 707 (quoting Rowley, 458 U.S. at 206-07, 102 S.Ct. at 3050-51). Parents who believe their child will not receive an educational benefit under an IEP may enroll the child in a private school and later obtain reimbursement for those costs if a federal court concludes (1) the school district did not offer a free appropriate public education; and (2) the private school placement complied with IDEA. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 13-14, 114 S.Ct. 361, 365-66, 126 L.Ed.2d 284 (1993). Parents who enroll their child in private school without the approval of the public school district do so with the risk they will not receive reimbursement for their costs. School Comm. of Burlington, 471 U.S. at 373-74, 105 S.Ct. at 2004-05; Florence County, 510 U.S. at 15, 114 S.Ct. at 366.

The goal of IDEA is to provide access to public education for all handicapped students. See Rowley, 458 U.S. at 179-81, 102 S.Ct. at 3037-38. Congress provided limited resources to the states to implement the policy of educating all disabled students, and the sufficiency of that education must be evaluated in light of the available resources. A.W. v. Northwest R-1 Sch. Dist., 813 F.2d 158, 164 (8th Cir.1987); see also Rowley, 458 U.S. at 179-81, 102 S.Ct. at 3037-38 (inten tion to reach all unserved disabled students). IDEA does not require that a school either maximize a student’s potential or provide the best possible education at public expense. Rowley at 203, 102 S.Ct. at 3049; A.W., 813 F.2d at 163-64. The statute only requires that a public school provide sufficient specialized services so that the student benefits from his education. Rowley, 458 U.S. at 195, 102 S.Ct. at 3045. IDEA’S goal is “more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.”² Id. at 192, 102 S.Ct. at 3043. IDEA requires disabled students to be educated with non-disabled students whenever possible. Id. at 202, 102 S.Ct. at 3048-49. In determining whether a disabled student’s education is sufficient under IDEA, courts must consider the nature of the student’s disability. Id.

The district court made extensive factual findings based on a hearing and on evidence presented to the state hearing panel. The school district diagnosed Nicholas as being delayed in reading and math by one year or more at the end of his first year at Hawthorne, and he subsequently repeated first grade.³ In May 1991, when Nicholas was in third grade, his reading skills were at the second grade level, his word attack skills (which enable readers to identify words they have not seen before) were at the first grade level, and he could not write a complete sentence. He had received three Ds and an F in reading that year and mostly Cs in all other subjects. A standardized test administered in September 1991, after Nicholas left Hawthorne, placed his reading skills in the second to ninth percentile. Nicholas’ teachers at Hawthorne primarily used Dolch sight lists (visual cues and context) to teach him to read, but they also used phonics (auditory cues) to help him recognize words. Hawthorne emphasized use of the Dolch sight lists because Nicholas was more successful with this method, but he had not learned how to read long words that he did not recognize by sight. The school decreased the amount of time Nicholas spent in the learning disabled classroom from 26 percent in his second year in first grade to 13 percent of his time in third grade.

The district court found Nicholas had behavioral difficulties at Hawthorne. Evaluations of Nicholas done when he was in second grade characterized him as poorly motivated, easily frustrated, and feeling different from his peers. The 1991-92 IEP placed him with non-disabled students for the majority of the day. The court noted the following statements of district personnel: his third grade teacher had said “his attitude is reflected in his [poor] grades;” his “reading grade reflects his effort;” “[h]e needs to stop the excuses & just work;” and “[o]ften he appears to be apathetic about school.” The court also found that one of Nicholas’ teachers told Mrs. Clynes she did not know what else she could do since Nicholas had chosen not to learn, and the director of special education told her that some children are non-readers.

The district argues that Nicholas had made progress at Hawthorne and the IEPs were sufficient to confer an educational benefit. The court erred by requiring a program to maximize Nicholas’ ability, by comparing his progress to non-disabled students, and by failing to examine the IEPs from the perspective of the time when they were written. The comments made by educators that were critical of Nicholas’ attitude should not have been interpreted to mean that they had given up on addressing his problems, but rather as simply reflecting his behavior. Furthermore, the district court did not properly consider IDEA’S requirement for educating disabled students in the least restrictive environment.

The Clynes respond by pointing out that Nicholas’ reading skills were very weak when he left Hawthorne, that the public school system did not effectively address their concerns, and that the district had given up on educating him. Although the state hearing panel ruled in favor of the district, it had recommended that it incorporate techniques used by the Churchill school. The Clynes argue this recommendation necessarily supports the inference that the 1991-92 IEP did not offer a free appropriate public education because it was generally different from the Churchill program. The 1992-93 IEP in turn was inadequate because it did not incorporate the Churchill program as the state hearing panel had suggested. The Clynes also contrast the benefits Nicholas received from his education at Churchill with his difficulties at Hawthorne.

After studying the underlying factual findings of the district court in light of the record and legal standards under IDEA, we conclude that the school district did offer Nicholas a free appropriate public education as required by Congress. Although Nicholas may well have benefited more from his education at Churchill than at Hawthorne, and he did not read as well as his non-disabled peers or as his parents hoped, IDEA does not require the best possible education or superior results. The statutory goal is to make sure that every affected student receive a publicly funded education that benefits the student. Nicholas’ record at Hawthorne indicates that he was making progress and that the 1991-92 IEP would have provided educational benefit to him. Despite his learning disabilities in reading and math, Nicholas earned passing marks in third grade⁴ and mostly Cs in mathematics. Although Nicholas did not have well developed word attack skills, his overall reading skills had improved, and he had been promoted to fourth grade just before his parents removed him from Hawthorne. See Rowley at 203, 102 S.Ct. at 3049 (grades and advancement from grade to grade “an^-important factor[s] in determining educational benefit”). The 1991-92 IEP called for Nicholas to spend over one quarter of each school day in the specialized learning disabled classroom in order to address his disabilities, double the amount of the previous year. See id. at 195, 102 S.Ct. at 3045 (noting that Congress “equated an ‘appropriate education’ to the receipt of some specialized educational services”). The Hawthorne IEP set goals in word recognition, comprehension, language skills and math, and the specialized education provided was reasonably calculated to enable him to benefit from his public education.⁵

The teaching methods used by Hawthorne were likely to confer an educational benefit. Although the district court was disturbed by the level of Nicholas’ word attack skills and the emphasis on Dolch sight lists for his reading instruction, it did not focus on the fact that the 1991-92 IEP set goals for word attack or on the testimony that phonics was also to be used. The court’s criticism of the educational methods used by the district was not based on findings of the state educators who reviewed the matter. Courts “lack the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy,” Rowley, 458 U.S. at 208, 102 S.Ct. at 3052 (internal quotation marks and citation omitted), and they must “avoid imposing their view of preferable educational methods.” Id. at 207, 102 S.Ct. at 3051. No state educational authority criticized Hawthorne’s method of teaching Nicholas how to read. Both of the state educational experts on the hearing panel found that Nicholas had benefited from the instruction provided at Hawthorne. As long as a student is benefiting from his education, it is up to the educators to determine the appropriate educational methodology. Id. at 208, 102 S.Ct. at 3051-52.

Placement of disabled students in segregated environments is appropriate “only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 20 U.S.C. § 1412(5). Although Nicholas’ behavior may have been affected by his interaction with non-disabled peers, none of the state educational experts concluded that Nicholas needed a segregated environment. The SLRO attributed his poor behavior to his difficulty in academic classes, not to his association with non-disabled students, and the hearing panel indicated that Nicholas should not be segregated from non-disabled students. The 1991-92 IEP would have allowed Nicholas to interact with non-disabled students while providing educational benefit to him, and the conclusion of the state educational reviewers that a segregated environment was not appropriate for him is another factor indicating that the Hawthorne program complied with IDEA.

Even though the 1991-92 IEP met IDEA’S requirements, the school district offered to improve it in the fall of 1991, but the Clynes removed Nicholas from Hawthorne before the district had an opportunity to review the IEP and attempt to come to agreement with them. Mrs. Clynes testified that in May 1991 she told the school district that she did not agree with the 1991-92 IEP, would not sign it, and would like it to be reviewed in the fall of 1991 in light of Nicholas’ summer program at Churchill. The 1991-92 IEP itself stated that it was to be reviewed in September 1991, but before that time came the Clynes informed the school district in August that Nicholas had been enrolled in Churchill for the year. The abrupt removal of Nicholas from Hawthorne prevented the district from following through on the request made by the Clynes for a review in the fall and from responding to their then current concerns.⁶ See Evans v. District No. 17, 841 F.2d 824, 831-32 (8th Cir.1988) (no failure to provide free appropriate public education where the school district had not been given an opportunity to change the child’s educational placement).

In sum, the Clynes were not entitled to reimbursement from public funds for the costs of sending Nicholas to private school in the summer of 1991 and the 1991-92 school year. The 1991-92 IEP called for an increase in special educational services in Nicholas’ areas of disability while advancing IDEA’S mainstreaming purpose by placing him with non-disabled students for a substantial portion of the school day. The IEP outlined his particular needs and responded to them in compliance with IDEA, and Hawthorne had agreed to consider possible improvements after Nicholas returned from summer school.

The Clynes removed Nicholas from Hawthorne without the permission of the school district before they sought review under IDEA, thus putting themselves at risk that they would not be reimbursed for private school costs. Evans, 841 F.2d at 832. Parents may not obtain reimbursement for the time a child is placed in private school without the permission of the school district if it is ultimately determined that the proposed IEP met the IDEA requirements. See Burlington Sch. Comm., 471 U.S. at 374, 105 S.Ct. at 2004-05; Evans, 841 F.2d at 832; see also 34 C.F.R. § 300.403 (1997) (no requirement for state to pay private school costs if child has available free appropriate public education). Since the 1991-92 IEP met IDEA requirements, the Clynes were not entitled under federal law to reimbursement for either the the 1991-92 or 1992-93 school years.⁷

III.

The issues raised by the Clynes in their cross-appeal are without merit. They appeal the denial of their claim for reimbursement for interest on loans they took out to pay for Nicholas’ private school education at Churchill. We need not decide whether interest is ever available under IDEA because by enrolling Nicholas at Churchill without the permission of the school district, the Clynes took the risk that they would not receive reimbursement from public funds for their loans, let alone for the interest on them. They also appeal the dismissal of their claims for damages under IDEA, the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132; 42 U.S.C. § 1983; and Section 504 of the Rehabilitation Act of 1973, § 794, for physical illness and emotional distress caused by the district’s allegedly incompetent and unprofessional failure to provide Nicholas with an adequate education. The damage claim cannot succeed because the district offered Nicholas a free appropriate public education, and damages are not available for IDEA violations. Heidemann v. Rother, 84 F.3d 1021, 1033 (8th Cir.1996). We affirm the rulings of the district court on these issues.

IV.

For the reasons discussed, the public school district was not obligated to reimburse the Clynes for Nicholas’ education at the Churchill private school, and the Clynes have not shown that the district court erred in denying them relief on their cross-appeal. We affirm in part, reverse in part, and remand for entry of judgment in favor of the school district.

1 . The SLRO’s award included reimbursement for the 1991 summer school session because he found Nicholas' participation in that session had been necessary in order to attend Churchill for the next school year.

2 . The SLRO stated that the district must show that it has “either produced satisfactory results or has an explanation why the student’s performance is the best that can be expected from him.” Under IDEA a school district is not required to maximize a student's potential.

3 . There was testimony at the state hearing that school authorities had wanted Nicholas to repeat kindergarten, but that the Clynes insisted that Hawthorne promote him to first grade.

4 . Nicholas received one failing grade in spelling in one quarter and another in reading in a different quarter, but he earned passing grades in both subjects in the other three quarters.

5 . The increase in specialized education for 1991— 92 and the district’s willingness to review the IEP to consider what was learned from Nicholas’ experience at summer school belies the Clynes' assertion that the district had given up on educating Nicholas.

6 . Contrary to the dissent’s contention that the school district was unwilling to explore any different approaches, there is evidence that the school district would have altered Nicholas’ IEP upon his return from the summer at Churchill. The IEP developed in 1992 called for changes in his instruction as a result of his experience at Churchill.

7 . The 1992-93 IEP developed by the school district also met IDEA requirements. In August 1992, the school district offered to meet with the Clynes to resolve the issues relating to Nicholas’ educational placement, and they met that month. Nicholas was re-evaluated by the school district in September, and although he was enrolled at Churchill and his parents had not yet sought review by the state hearing panel, his IEP was revised in October. The IEP called for double the amount of individualized special education compared to the 1991-92 IEP, and four times the amount he had received in 1990-91. The 1992-93 IEP set goals in, among other things, decoding, vocabulary, comprehension, and written expression. At the same time, he was placed with non-disabled students in non-academic subjects.