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May 14, 1999


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 local educational 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 reimbursement.

a. Standard of Review

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

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 ...

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