The opinion of the court was delivered by: Moran, Senior District Judge.
T.H. has just celebrated his fifth birthday. Over the past two
and half years, he has cleared some important cognitive,
linguistic, and behavioral milestones despite the autism which
makes it difficult for him to focus his attention on the task at
hand. There can be no doubt that the informed and dedicated
involvement of T.'s parents has been instrumental in securing for
T. a productive educational environment. But "proof that loving
parents can craft a better program than a state offers does not,
alone, entitle them to prevail under the [Individuals with
Disabilities Education] Act." Kerkam v. McKenzie, 862 F.2d 884,
886 (D.C.Cir. 1988); Individuals with Disabilities Education Act
(IDEA), 20 U.S.C. § 1400, et seq.
This action was initiated when T.'s parents (plaintiffs) sought
to enforce the decision of the Level II review officer ordering
defendant Palatine Community Consolidated School District 15
(district) to pay for T.'s home-based special education program.
We granted the parents' request for interim relief on December 2,
1998, and ordered the school district to cover the costs of T.'s
"then-current educational placement" until all administrative and
judicial review proceedings are completed. The central question
presented here is whether the school district and/or the Illinois
State Board of Education (ISBE) failed to comply with the
requirements of the IDEA and are therefore permanently
responsible for the costs of the program unilaterally implemented
by T.'s parents.
We have before us a number of pending motions. Plaintiffs and
the district have filed cross motions for summary judgment on the
merits of the final administrative determination. The district
has also moved for summary judgment on its cross claim against
the ISBE seeking reimbursement from the State in the event that
the district is found liable for T's home-based placement. There
are also two motions to clarify our order of December 2, 1998:
the district asks us to reconsider the start date of the interim
relief and both parties ask us to review a list of disputed
expenses. Finally, plaintiffs' petition for attorneys fees is
still pending in case number 98 C 4633. We begin with our review
of the final administrative decision.*fn1
I. An appropriate placement for T.
Three Supreme Court cases establish our task on review. In
Board of Educ. of Hendrick Hudson Central School Dist. v. Rowley,
458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982), the Court
set out a two-part test to determine whether a child has been
given the free appropriate public education (FAPE)*fn2 he or she
is entitled to under the IDEA. A reviewing court must first
determine whether the state has complied with the procedural
safeguards set out in the Act. Id. at 206, 102 S.Ct. 3034.
Second, it must determine whether the IEP*fn3 proposed by the
agency is appropriate, i.e. "reasonably calculated to enable the
child to receive educational benefits." Id. at 207, 102 S.Ct.
3034. In School Committee of Town of Burlington, Mass. v. Dept.
of Educ. of Mass., 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385
(1985), the Court confirmed that the parents' unilateral
placement of a child in an alternative program will not bar
reimbursement for the costs associated with the placement, so
long as one of the Rowley prongs was violated and the parents'
placement is found to be appropriate. Finally, the Court held in
Florence County School Dist. Four v. Carter, 510 U.S. 7, 114
S.Ct. 361, 126 L.Ed.2d 284 (1993), that the placement chosen by
the parents need not be certified or approved by the State to
qualify for reimbursement.
In T.'s case, the Level II review officer reversed the Level I
hearing officer's finding that the school district had violated
T.'s procedural rights (Level I at 26; Level II at 23), and the
parents have not appealed that portion of his decision. Thus, we
must decide whether the district's IEP would have provided T.
with an appropriate education and, if not, whether the parents'
home-based program was appropriate and thus eligible for
The standards for our review differ from those governing a
typical motion for summary judgment. Section 1415(e)(2) of the
IDEA dictates that the district court "shall receive the records
of the administrative proceedings, shall hear additional evidence
at the request of a party, and, basing its decision on the
preponderance of the evidence, shall grant such relief as the
court determines is appropriate."*fn4 Thus, when neither party
has requested that the district court hear additional evidence,
as is the case here, "[t]he motion for summary judgment is simply
the procedural vehicle for asking the judge to decide the case on
the basis of the administrative record." Heather S. v. State of
Wis., 125 F.3d 1045, 1052 (7th Cir. 1997). Our decision must be
based on the preponderance of the evidence and the school
district, as the party challenging the outcome of the state,
administrative decision, bears the burden of proof. Id., citing
Board of Educ. of Comm. Consol. School Dist. No. 21 v. Illinois
State Rd. of Educ., 938 F.2d 712, 716 (7th Cir. 1991), cert.
denied, 502 U.S. 1066, 112 S.Ct. 957, 117 L.Ed.2d 124 (1992).
In reviewing the administrative record, the district court is
required to give "due weight" to the results of the
administrative proceedings and is warned "not `to substitute
[its] own notions of sound educational policy for those of the
school authorities,' whose decision it is reviewing." Heather S.,
125 F.3d at 1052-53 (quoting Rowley, 458 U.S. at 206, 102 S.Ct.
3034) (other citations omitted). "[T]he `due weight' which the
court must give to the hearings below is not to the testimony of
witnesses or to the evidence — both of which the court must
independently evaluate — but to the decisions of the
hearing officers." Heather S., 125 F.3d at 1053. Where a state
has set up a two-tiered review process, federal courts are
required to defer to the final decision of the state
authorities, in this case, the decision of the Level II review
officer (the review officer). Id. at 1053-1054.
The school district argues that we should not defer to the
review officer because he made a variety of legal and factual
errors. In particular, the district contends that the review
officer erroneously placed the burden of proof on the district,
that he utilized an incorrect definition of "educational
benefit," and that he relied on experts who came into the dispute
after the IEP was developed while ignoring empirical studies
which supported the district's position.
With respect to the burden of proof, we can find no controlling
authority for the district's assertion that the parents bore the
burden of proof at the Level II hearing. The Seventh Circuit has
not addressed the question and other circuits appear to be
split.*fn5 Because of our conclusion below and the standards
governing our review, we find it unnecessary to weigh in on this
dispute.*fn6 As for the district's other objections, we will
examine the review officer's formulation of "educational benefit"
and will independently evaluate the testimony of the expert
witnesses. Ultimately, though, we are mindful of the hearing
officer's special expertise in education law and will give the
strongest deference to his findings of fact and final
conclusions. See Doyle v. Arlington County School Bd.,
953 F.2d 100, 105 (4th Cir. 1991) (holding that if district court is not
going to follow hearing officer's findings of fact, it is
required to explain why not).
b. The district's proposed IEP and settlement offer
Following two arena assessments of T.'s skills, the school
district convened a multidisciplinary conference (MDC) on April
21, 1997, to review the assessment data and develop T.'s
IEP.*fn7 IDEA regulations provide that the IEP may not be
completed before the MDC. See 34 CFR Part 300, App.C, Q55. The
participants accepted Dr.
Pasternak's diagnosis and recorded T.'s disabling condition as
autism. (dist.'s 12m at A23). They also agreed that T. needed and
qualified for special education and related services in the areas
of cognitive skills, receptive and expressive language, fine
motor skills, oral motor skills, social interaction, cooperation,
compliance and self-help. Id. at 23. Although there was little
actual discussion (AR1246), mutually-acceptable goals were
developed for T. in most of these areas. Behavioral goals,
according to the written report, were to be developed later.
(dist.'s 12m at A23).
The parents and the district could not agree on the most
appropriate program to help T. achieve the goals identified in
the IEP. The school district proposed its "early childhood
program" which consisted of attendance in a cross-categorical
classroom for 2.5 hours per day, four days a week, during the
school year. (Id. at 25). His classroom time was to include 90
minutes per week of speech and language therapy, 60 minutes per
week of social work, and 60 minutes per week of occupational
therapy. (Id. at 24). T.'s parents, however, objected to this
placement and requested that the district consider the intensive
ABA/DTT Lovaas program already in place at T.'s home for 35-40
hours per week.*fn8 (Id. at 25, 40). District officials running
the meeting would not discuss the Lovaas program, but ultimately
allowed a written summary of T.'s home-based program to be
appended to the record. (dist. 12m at A40). The parents requested
a due process hearing on April 28, 1997.
c. The Level I due process hearing
After four days of administrative hearings and an exhaustive
review of the record, the Level I IHO issued a fifty-eight page
opinion on December 21, 1997, finding that the district's IEP was
deficient on two levels. First, as a educational proposal, the
early childhood program was "substantively inadequate" to meet
T.'s needs. She found that it was not based on the
recommendations of autism experts and did not provide
sufficiently intense, one-on-one training. She highlighted the
testimony of one witness who reported that 3-4 teacher/student
interventions per minute are necessary for an autistic child to
make progress, a rate impossible to achieve in a multi-student
environment. (Level I at 33). The IHO acknowledged the testimony
of district personnel expressing their discomfort with the
intensive Lovaas approach, but was unpersuaded by their "vague,
generalized, non-specific, eclectic, child-led approach to
educating autistic children." (Level I at 16). She further found
that the improvements observed by the early intervention team,
such as T.'s new ability to sit and be attentive to learning,
could not be attributed to his participation in the district
playgroup, but were the result of the ABA/DTT program already in
place at T.'s home. The district's failure to "properly address
T.'s need for a behavior management plan" also rendered the plan
substantively inadequate, as did the absence of any provision for
an extended school year. Finally, the hearing officer concluded
that the school district's offer to double T.'s classroom time
did not remedy the substantive deficiencies in the
IEP, in part because there was no specific plan for the
additional ten hours.
Beyond the substantive shortcomings of the proposed IEP, the
IHO found that the district failed to "individualize" the program
to meet T.'s unique needs and instead chose the early childhood
program because it was the only available school-based placement
for T. (Level I at 19). Her conclusions in this regard often
focus on the district's level of care. The IHO suggests that the
district willfully disregarded information about T.'s
capabilities in order to justify the placement on which they had
already settled. In her opinion, the district failed to
"consider what would be minimally adequate for this child" even
though they understood his unique characteristics as an autistic
child. (Level I at 18). She found that "school district personnel
were aware that, according to the neurologist, T.'s diagnosis
presented unique needs which required an intensive, consistent
behavioral intervention program employing discrete trial
teaching." Id. at 13. She also emphasized the fact that some of
the individuals who helped develop the IEP knew from direct
observation that T. had trouble in group settings and that his
participation in the playgroup required intense adult
intervention. Thus, it was unacceptable that the IEP called for
significantly less contact than the three-on-one attention T.
often received in the playgroup. (Level I at 13, 18). The
district appealed the Level I decision on January 8, 1998.
d. The Level II Review Hearing
Neither party chose to call witnesses for the Level II review
hearing. The school district made many of the same arguments that
it renews here. Citing Rowley, the district argued that it need
only provide an IEP reasonably calculated to enable the child to
receive an "educational benefit." Level II at 7. Furthermore, the
district argued, Lachman v. ISBE, 852 F.2d 290, 296 (7th Cir.),
cert. denied, 488 U.S. 925, 109 S.Ct. 308, 102 L.Ed.2d 327
(1988), holds that where a placement dispute is based on a
disagreement about educational methodology, the school district
and not the parents have the primary responsibility for "choosing
the educational method most suitable to the child's needs."
(Level II at 11). The district concluded that it had fulfilled
its obligation and consequently was not required to reimburse
T.'s parents for the costs of their unilateral placement
decision. The parents protested the district's characterization
of the dispute as one over "methodology," suggesting instead that
the heart of the matter was whether the district's efforts were
"reasonably calculated" to provide T. with an educational
benefit. Plaintiffs argued that the weight of the evidence showed
the district's recommended placement would be ineffective, and
that the district had not contested the IHO's conclusion that
T.'s home-based placement was appropriate.
Applying the Rowley test, the Level II review officer ruled
that the school district failed to prove that its IEP was
"reasonably calculated" to provide T. with "educational benefit."
Even assuming that the school district would have modified the
IEP within thirty days to provide for a behavioral plan, an
extended school year, and appropriate percentage target levels
for mastery of the identified goals and objectives, the IEP would
not enable T. to progress at a rate sufficient to meet the
primary objective, namely successful ...