Edwin BURILOVICH; Linda Burilovich, as next friends on behalf of their son, Bradley Burilovich, Plaintiffs-Appellants, v. BOARD OF EDUCATION OF THE LINCOLN CONSOLIDATED SCHOOLS; Ron Greiner, individually, Defendants-Appellees.
No. 98-2187
United States Court of Appeals, Sixth Circuit.
Argued: Nov. 4, 1999. Decided and Filed: April 4, 2000
208 F.3d 560
The NTSB also correctly observed that the ALJ had applied an unduly limited definition of “use” of unauthorized materials. Although Singer maintains that the NTSB misconstrued the ALJ‘s findings in this regard, the ALJ did in fact ask whether there was a correlation between the information on the notes and Singer‘s answers on the examination—an inquiry which suggests that a defendant must derive a benefit from unauthorized materials in order to have “used” them. The NTSB‘s contrary interpretation of its regulation—that a prohibited use is “any effort to obtain help from an unauthorized source of information or assistance, whether successful or otherwise“—is entitled to deference. See Borregard v. NTSB, 46 F.3d 944, 945 (9th Cir.1995). The NTSB‘s construction of the term “use” is both reasonable and consistent with NTSB precedent, see, e.g., Administrator v. DeSilva, No. SE-11297, 1993 WL 657746, at *4 (NTSB May 5, 1993); Del Balzo v. Thompson, No. SE-11495, 1993 WL 128059, at *2 n. 7 (NTSB Apr. 6, 1993), and will not be disturbed by this court.
In conclusion, the NTSB did not act arbitrarily or capriciously in rejecting the ALJ‘s legal conclusion that Singer‘s conduct did not amount to use of the notes. The NTSB‘s decision reflects its determination that the ALJ applied the wrong standard of proof and an incorrect definition of the term “use.” That determination is rational and in accordance with law.
2. “Authorized”
Finally, Singer contends that the notes were not unauthorized materials. Singer maintains that the only portion of the notes that related to questions on the examination were weight and balance formulae. Because FAA Order 8080.6A allows examinees to use weight and balance formulae that are permanently inscribed on aids otherwise permitted during examinations, Singer continues, the information on the notes was “authorized” within the meaning of
This argument is unavailing. While the FAA Order may authorize weight and balance formulae that are permanently inscribed on fundamental flight planning equipment, it makes no allowance for such information in the form of written notes. Perhaps more to the point, sufficient testimony was developed during the hearing to support the NTSB‘s rational conclusion that the notes contained information other than the weight and balance formulae that could have aided Singer during the examination. The NTSB therefore did not act arbitrarily or capriciously in disregarding the ALJ‘s finding that the information on the notes was authorized.
III.
For the foregoing reasons, the petition for review is denied.
Richard J. Landau (argued and briefed), Dykema Gossett, Ann Arbor, Michigan, for Plaintiffs-Appellants.
Before: KEITH, NORRIS, and CLAY, Circuit Judges.
OPINION
ALAN E. NORRIS, Circuit Judge.
Plaintiffs Edwin Burilovich and Dr. Linda Burilovich (“plaintiffs“), acting on behalf of their autistic son Bradley (“B.J.“), sued the Board of Education of the Lincoln Consolidated Schools and its special education director (“defendants“) under the Individuals with Disabilities Education Act (“IDEA“),
I.
B.J. was born on November 15, 1990. At an early age, his parents noticed that his language skills were significantly delayed. When he was three, plaintiffs sought assistance from their local school district, Lincoln Consolidated Schools. B.J. was evaluated by a Multidisciplinary Evaluation Team (“MET“) at Willow Run Community Schools, which was providing Preprimary Impaired (“PPI“) services for Lincoln. The MET generated an Individualized Education Program (“IEP“), providing B.J. with nonclassroom PPI services, along with speech and language therapy.
On February 24, 1994, B.J. was evaluated by Dr. Luke Tsai at the University of Michigan Adult/Child Psychiatric Hospitals. Suzanne Boyer, B.J.‘s teacher, was present for the last part of the appointment. Dr. Tsai diagnosed B.J. as autistic; Dr. Burilovich later hand-delivered a copy of Dr. Tsai‘s evaluation to Ms. Boyer. This evaluation was not placed in B.J.‘s school file.
Plaintiffs began researching educational approaches to treating autism. They learned of an approach developed by Dr. Ivar Lovaas, called discrete trial training (“DTT“). DTT emphasizes heavy parental involvement, early intervention, and treatment in the home and elsewhere in the community, rather than in professional settings. Plaintiffs started a home-based DTT program for B.J.
In June 1994, Dr. Burilovich wrote to Willow Run‘s Superintendent, Dr. Yomtoob, expressing her concerns about the downsizing of the Willow Run infant-toddler program and B.J.‘s being given only three hours of instruction a week. That letter also indicated that B.J. was autistic.
In September 1994, Lincoln notified B.J.‘s parents that it was transferring B.J. from the Willow Run program to the Lincoln PPI program. On October 1, 1994, the parents consulted with Dr. Patricia Meinhold, a psychology professor at Western Michigan University, who concluded that B.J. was an appropriate candidate for DTT and suggested the parents request assistance from their school district. An IEP Committee meeting (“IEPC“) was held with the school. The resulting IEP placed B.J. in the district‘s PPI program 2.5 hours a day, four days a week, with 40-80 minutes per week of speech and language therapy. The parents requested that part of B.J.‘s school time be used for DTT, but the district did not include DTT in the IEP. B.J.‘s teacher Betsy McMillin offered to, and did, provide DTT therapy for a half hour before the school day began.
B.J.‘s home program continued to develop. By Thanksgiving he was receiving at least 20 hours per week of DTT. The parents decided to reduce B.J.‘s school participation to two days a week following Christmas vacation; his time spent on DTT increased to 20-25 hours a week. According to plaintiffs, in the first half of 1995, B.J. made progress with his language and imitative skills, but was not involved in classroom activities. By the last half of 1995, B.J. was averaging 25-30 hours of home-based DTT. On November 28, 1995, Mr. Burilovich visited B.J.‘s classroom and made a videotape. The parents maintain that the behavior on the videotape confirmed Dr. Burilovich‘s concerns that B.J.‘s behavior in school was more regressed than at home.
On July 1, 1995, defendant Ronald Greiner became the Director of Special Education for the Lincoln Consolidated Schools. He began working with the Burilovich family in the fall of 1995 and an IEPC for B.J. was held on December 1, 1995. On December 7, 1995, Mr. Greiner sent a letter to plaintiffs memorializing conversations he had with them and set-
Another IEPC was scheduled for March 18, 1996. Before that meeting, Dr. Meinhold submitted a report that included a formal written program proposal for B.J. At the meeting, Mr. Greiner proposed a program predominantly consisting of DTT, accepting the goals and objectives developed by Dr. Meinhold, and providing for staff training by Dr. Meinhold. According to Mr. Greiner, he proposed the plan involving DTT because he wanted to avoid conflict and a due process hearing. The staff, however, did not support the proposal. While most of the meeting was taped, the proposal was not written in a formal IEP. The parties disagree over the reason why there was no written document. Nonetheless, the participants left with the understanding that Dr. Meinhold would begin training the staff the next week. That training session was later canceled, according to Mr. Greiner, because of recent snow days.
After the meeting, Mr. Greiner realized that the staff did not think DTT was a good program for B.J. Mr. Greiner met privately with his staff on April 16 and 26, 1996 to discuss DTT and develop a new proposal. A proposal was drafted and sent to the parents, with goals similar to those proposed by Dr. Meinhold, but without any DTT. Instead, the proposal placed B.J. in a mainstream kindergarten class with one-to-one support from a trained paraprofessional.
An IEPC was scheduled for May 17, 1996, to which Dr. Meinhold was not invited. At the May IEPC, plaintiffs had serious concerns about placing B.J. in a mainstream kindergarten program without any DTT and discussed why the proposal differed from the March proposal for B.J. According to defendants, Mr. Greiner tried to explain the rationale for the proposal, but the parents were not interested in hearing details. Plaintiffs signed the IEPC, noting their disagreement, on May 23, 1996.
Pursuant to the IDEA, the parents requested an impartial due process hearing before a local hearing officer (“LHO“). The LHO decided in favor of B.J.‘s parents, finding that the March 1996 oral proposal was an IEP that should be implemented, and directing the district to reimburse the parents for the expenses of providing DTT at home. Both parties appealed aspects of the decision. The state hearing review officer (“SHO“) reversed the LHO, finding that no IEP had been created in March and the May IEP was valid. The SHO determined that the May IEP was developed without procedural or substantive violations and provided a free appropriate public education (“FAPE“) designed to maximize B.J.‘s potential, in accordance with federal and state law. The SHO also denied reimbursement to the parents.
Plaintiffs filed a complaint in district court appealing the SHO‘s determination and alleging violations of the IDEA, the Rehabilitation Act of 1973, the Americans with Disabilities Act,
The district court apparently believed that the parties had submitted the case for review of the administrative decision on the record. Because plaintiffs dispute that the case was submitted in that manner, we will treat the cause as having been submitted on summary judgment.
II.
A. Standard of Review
The IDEA was designed to give children with disabilities a free appropriate public education designed to meet their unique needs. See
This court reviews both the procedural and substantive matters under a standard of “modified de novo review.” Renner, 185 F.3d at 641; see Metropolitan Bd. of Pub. Educ. v. Guest, 193 F.3d 457, 463-64 (6th Cir.1999). This standard of review stems from the Supreme Court‘s holding that courts must give “due weight” to the state administrative proceedings. Rowley, 458 U.S. at 206, 102 S.Ct. 3034. In Rowley, the Court looked at the procedural safeguards in the IDEA that indicated that a court “shall receive the record [sic] of the [state] 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.” Id. at 205, 102 S.Ct. 3034 (quoting
This court has not elaborated on the meaning of “due weight.” See, e.g., Doe v. Metropolitan Nashville Public Schools, 133 F.3d 384, 386-87 (6th Cir.), cert. denied, 525 U.S. 813, 119 S.Ct. 47, 142 L.Ed.2d 36 (1998) (declining to resolve the meaning of due weight definitively).1 We
With regard to procedural matters, a court should “strictly review an IEP for procedural compliance,” although technical deviations will not render an IEP invalid. Dong v. Board of Educ., 197 F.3d 793, 800 (6th Cir.1999); see also Doe v. Defendant I, 898 F.2d 1186, 1190-91 (6th Cir.1990). The Supreme Court has emphasized the importance Congress attached to the IDEA‘s procedural safeguards:
[T]he 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, 102 S.Ct. 3034. Furthermore, “[i]f the procedural requirements of the IDEA are met, greater deference is to be afforded to the district‘s placement decision.” Dong, 197 F.3d at 800.
As for substantive issues, “[t]he ‘preponderance of the evidence’ language in the [IDEA] ‘is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.‘” See Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 624 (6th Cir.1990) (quoting Rowley, 458 U.S. at 206, 102 S.Ct. 3034). The Supreme Court has pointed out that:
In assuring that the requirements of the Act have been met, courts must be careful to avoid imposing their view of preferable educational methods upon the States. The primary responsibility for formulating the education to be afforded a handicapped child, and for choosing the educational method most suitable to the child‘s needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child.
Rowley, 458 U.S. at 207, 102 S.Ct. 3034 (footnote omitted). Indeed, federal courts are generalists with no expertise in the educational needs of handicapped children and will benefit from the factfinding of a state agency, which is presumed to have expertise in the field. See Renner, 185 F.3d at 641; Cleveland Heights-Univ. Heights City School Dist. v. Boss, 144 F.3d 391, 398-99 (6th Cir.1998) (noting that the due weight standard of review “militates against second guessing the educational expertise of the administrative officers and conclusions predicated upon these [sic] expertise“).
This court recently described the substantial evidence test as one in which an agency‘s findings would be set aside only when the record clearly precludes the administrative decision from being justified by a fair estimate of the worth of the testimony of witnesses, the agency‘s informed judgment on matters within its special competence, or both. See Loral Defense Systems-Akron v. NLRB, 200 F.3d 436, 448 (6th Cir.1999). Because administrative findings in IDEA cases should be afforded less deference than that given to agencies under the substantial evidence test, and in view of the IDEA‘s preponderance of the evidence standard, we hold that administrative findings in an IDEA case may be set aside only if the evidence before the court is more likely than not to preclude the administrative decision from being justified based on the agency‘s presumed educational expertise, a fair estimate of the worth of the testimony, or both. A court should defer to the administrative findings only when educational expertise is relevant to those findings and the decision is reasonable. By so deferring, “due weight” will have been given to the state administrative proceedings. We also reiterate that, when there is a conflict between the holdings of the local and state hearing officers, the court must defer to the state hearing officer‘s decision in reviewing the record on appeal.2 See Renner, 185 F.3d at 641 (holding that court must defer to the final decision of the state authorities).
In a case involving a motion for summary judgment, the court should still apply modified de novo review, but must ensure that there are no genuine issues regarding the facts essential to the hearing officer‘s decision. See Metropolitan Nashville Public Schools, 133 F.3d at 387. In rendering its decision, the court may still rely upon the hearing officer‘s presumed educational expertise, as long as the material facts underlying the officer‘s determination are not in dispute.3
B. Discussion
Plaintiffs raised numerous issues in their brief. With regard to procedural matters, plaintiffs argue that an IEP was finalized in March, not May, of 1996; two meetings in April 1996 were IEPC meetings from
1. Existence of March 1996 IEP
Plaintiffs argue that the district court erred in determining that there never was a March 1996 IEP. They maintain that despite the absence of a written document the evidence shows that Mr. Greiner did not intend his proposal to be tentative and planned to implement the IEP. Federal law and Michigan regulation, however, both indicate that an IEP is a written document. See
2. April 16 & 26 Meetings
Next, plaintiffs argue that they were denied meaningful parental participation in the IEPC process because they were not invited to two meetings in April 1996. See
3. Qualifications of District Staff
Plaintiffs also argue that the district failed to consult with knowledgeable professionals regarding B.J.‘s placement as required by IDEA regulations. See
This court has rejected “the contention that [a school district] must include an expert in the particular teaching method preferred by the parents in order to satisfy the requirement that the IEPC include persons knowledgeable about ‘placement options.‘” Dong, 197 F.3d at 801; see also Renner, 185 F.3d at 644. Furthermore, the record indicates that Marianne Miller, a teacher consultant for the district, had experience using DTT. The district also had Dr. Meinhold‘s report and was able to consider it at the IEPC. See Dong, 197 F.3d at 801 (noting that the IEPC had a report from plaintiffs’ speech therapist, who utilized DTT).
Plaintiffs also point out that the district court used the wrong standard when it found they had failed to prove “by a preponderance of the evidence” that the district‘s staff members were unqualified. The district court reviewed the qualifications of the district‘s staff and concluded that there was “no evidence” they were unqualified. This holding indicates that plaintiffs did not meet their summary judgment burden of coming forward with evidence to create a genuine issue as to qualifications. Plaintiffs have failed to suggest on appeal how they would demonstrate a genuine issue. Therefore, while the district court cited the wrong standard, the holding was correct.
The parties also engage in a debate over whether Michigan‘s “maximum potential” standard requires the district to hire “top-notch consultants” and to have personnel knowledgeable about programs related to the needs of every disabled child. Because plaintiffs have failed to raise a genuine issue as to whether there were personnel knowledgeable about DTT at the meeting and failed to argue whether Dr. Meinhold would be a top-notch consultant, we decline to address the argument.
4. Evaluation of B.J. Before IEP
Plaintiffs argue that the district did not conduct a required comprehensive evaluation of B.J. before making a significant change in his placement.4 Assuming that there was a proposed significant change in placement, we must address whether the evaluation in February 1996 was adequate. Plaintiffs maintain it was inadequate because B.J. was evaluated solely for the purpose of recertification and placement options were not considered. Both the LHO and the SHO determined that the evaluation was adequate. Plaintiffs have not made a persuasive argument otherwise, especially considering the district had before it previous evaluations of B.J. and Dr. Meinhold‘s report. Nor have plaintiffs shown how there is a genuine issue of material fact as to whether B.J. needed a new evaluation before developing his May 1996 IEP. As the district court pointed out, B.J. was evaluated in early 1996 and “neither plaintiffs nor defendants argue that a new evaluation would have yielded different results.”
5. Timely Recertification of B.J.
Plaintiffs also maintain that defendants failed to timely recertify B.J. by waiting until 1996 to certify him as autistic, even though defendants knew he was diagnosed as autistic in 1994. Defendants dispute the date they learned of B.J.‘s autism diagnosis. Plaintiffs cite the portion of the IDEA that sets out the requirements for
“Preprimary impaired” means a child through 5 years of age whose primary impairment cannot be differentiated through existing criteria within R 340.1703 to R 340.1710 or R 340.1713 to R 340.1715 and who manifests an impairment in 1 or more areas of development equal to or greater than 1/2 of the expected development for chronological age, as measured by more than 1 developmental scale, which cannot be resolved by medical or nutritional intervention. This definition shall not preclude identification of a child through existing criteria within R 340.1703 to R 340.1710 or R 340.1713 to R 340.1715.
Id.
The only case cited by plaintiffs to suggest a time limitation is readily distinguishable. In Metropolitan Nashville & Davidson County School System v. Guest, 900 F.Supp. 905 (M.D.Tenn.1995), the court held that a school system had violated its obligations under the IDEA to identify, locate, and evaluate children needing special education by delaying two months in identifying a disabled child and an additional four months in properly evaluating him. The court emphasized that while the Sixth Circuit has recognized that technical defects do not result in a violation of the IDEA if there is no substantive deprivation, “[s]ix months without appropriate services, however, is one-sixth of a three-year-old‘s life.” Id. at 908. That case involved the initial identification and evaluation of the child, not the reevaluation at issue with B.J. Plaintiffs maintain that the delay in this case was not just a technical defect, given the more intensive programming available for autistic students. Yet plaintiffs do not suggest how the delay could have caused a substantive problem with B.J.‘s IEP, since by the time the March and May IEPCs occurred, B.J. had been certified as autistic. For these reasons, plaintiffs have failed to explain the relevance of the failure to recertify B.J. sooner, even if a time limitation was applicable.
6. B.J.‘s Unique Needs
Plaintiffs suggest that the IEP failed to take B.J.‘s unique needs into consideration, asserting that the district proposed the IEP because its personnel had insufficient experience for any other program.5 To support this allegation, plaintiffs point to the testimony of Amy Stamps, the school psychologist, who indicated that the school personnel was not trained sufficiently to provide B.J. with DTT. Ms. Stamps’ testimony does not support plaintiffs’ assertion, however, because the record indicates that she still had concerns about DTT even when she assumed that personnel could be properly trained.
The district court and the SHO correctly determined that defendants’ program took B.J.‘s unique needs into consideration. As the district court pointed out, defendants’ program set goals for B.J. and created a detailed daily schedule to address each of
Plaintiffs also suggest that the IEP did not address B.J.‘s unique needs because it did not mention B.J.‘s home program of DTT or his potential for regression. They rely on a case in which a district court ruled against a change in placement due to a risk of regression. See Delaware County Intermediate Unit No. 25 v. Martin K, 831 F.Supp. 1206, 1229 (E.D.Pa.1993). We do not read the case as saying that an IEP always will be defective if it fails specifically to address regression, nor do plaintiffs posit any argument that would persuade this court that we should so hold.
Plaintiffs further maintain that the district court improperly resolved a material question of fact by deferring to the SHO‘s decision perceived by the court as discrediting plaintiffs’ expert, Dr. Meinhold. Review of the SHO‘s opinion reveals that, while the SHO said that he discounted (not “discredited“) Dr. Meinhold‘s testimony, the SHO actually did consider her proposed DTT package when assessing whether B.J.‘s unique needs were met. There is no issue of material fact because the SHO‘s findings did take into account Dr. Meinhold‘s views. After independent review of the record, and giving due weight to the SHO‘s decision, we agree with the SHO‘s conclusion.
7. Whether the IEP was Designed to Allow B.J. to Attain his Maximum Potential
Plaintiffs maintain that there was conflicting testimony addressing the question of whether the IEP would allow B.J. to attain his “maximum potential.” Plaintiffs suggest that the only expert opinion based upon a professional, individual assessment of B.J. showed that he needs an intensive program of individualized, one-to-one instruction. Plaintiffs note that defendants’ expert, Dr. Gary Mesibov, had never met B.J., while plaintiffs’ experts, Drs. Meinhold and Holmes, had met and observed B.J. Plaintiffs also indicate that other defense witnesses included school district staff, some of whom had never met B.J. or who had only met him once. Plaintiffs reiterate their assertion that the IEP was based on the availability of resources and experience of school personnel, not B.J.‘s needs. Plaintiffs also cite several cases approving of DTT. Finally, plaintiffs maintain that the IDEA‘s goal that a student be in the least restrictive environment did not weigh in favor of the district‘s IEP because B.J. was not ready for the fully mainstreamed class suggested by the IEP.
Independent review of the record confirms that the parties had widely differing views of the best method of education for B.J. Dr. Burilovich felt that when B.J. had less DTT, he tended to be less social, to engage in less speech, and to increase his self-stimulation. She felt he was very different in school, and that he would be totally overwhelmed in a mainstream class. Dr. Meinhold testified that B.J. would not benefit from mainstream kindergarten, even with a one-to-one paraprofessional. Dr. Holmes also indicated that DTT would be better than kindergarten for B.J., noting that B.J. would not benefit from being with peers until he developed better communication skills.
The district‘s witnesses, on the other hand, saw problems with DTT. Dr. Mesibov indicated that the DTT proposal em-
The district court reviewed the testimony and concluded that the school‘s proposal was the only one tailored to B.J.‘s needs, holding that the SHO‘s findings were well supported by the evidence. Given the differing opinions on both sides as to the best program for B.J. and the reasonable bases in the record for the opinions, we emphasize that courts should not “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. 3034. Giving due weight to the SHO‘s decision, we conclude that the IEP was designed to allow B.J. to achieve his maximum potential. Cf. Renner, 185 F.3d at 644-46 (finding IEP substantively valid under similar circumstances).
Because plaintiffs have failed to show that the IEP is inappropriate, they are not entitled to reimbursement for the costs of B.J.‘s DTT program. See School Comm. of Burlington v. Department of Educ., 471 U.S. 359, 374, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). Furthermore, because B.J. was offered a FAPE, the district court was correct in dismissing the remaining claims.
III.
For the foregoing reasons, the judgment of the district court is affirmed.
Willie FREEMAN, Petitioner-Appellant, v. James H. PAGE, Warden, Stateville Correctional Center, Respondent-Appellee.
No. 99-2825
United States Court of Appeals, Seventh Circuit.
Argued Jan. 14, 2000. Decided March 28, 2000