*1 thаt the further held It was be nonfinal. a final order complains was Mr. Schwartz ap- discovery could obtain Bankruptcy Appellate resisting parties the by renewable and the by disobeying order Panel. review pellate for con- to sanctions themselves subjecting the order Panel that the agree with We in full reasoning applies same tempt. The F.2d Kaplan, v. final. Childs was not post-judg- A present case. in the force Cir.1972), (8th point governs in and is requiring There, been entered ment has Kenneth order case. of this the outcome was against not final and judgment discovery. The order is a had obtained Childs Af- Harvey by Tessler. the appellate and review Harvey Kaplan subject to not entered, Mr. Childs was judgment ter The Panel Panel. Bankruptcy Appellate to his efforts in aid of discovery sought that the observing in entirely correct District Court The judgment. the collect when appealable final and would be order judgment requiring the an order entered holds Bankruptcy Court if the discovery request- provide debtors to com- contempt failing for “Schwartz appealed then judgment debtors ed. Thе slip supra, Kujawa, In re ply ....” James the order Court, held that and we to this Bankruptcy of the op. The order 3-4. Accordingly, final. appealed from was Panel, for want of dismissing Appellate juris- appeal for want we dismissed appeal from jurisdiction Mr. Schwartz’s diction. Court, Bankruptcy is appellants leave the did not This result Affirmed.1 ap- for any opportunity in Childs without in our explained As we pellate review. still have opinion, “[defendants
Childs to find them proceeding in a
opportunity obey the failure to for
contempt of court cited United .Id. at 630. We
order 530, 91 S.Ct. 402 U.S. Ryan, v.
States (1971), in which the Su-
preme Court held was not a subpoena quash
motion party resist-
final, appealable order. ex- Supreme Court subpoena, the ing the CJN, by through his Parent plained, and Natural Guardian litigate [the comply may refuse SKN, Appellant, ... subpoena] of the appropriateness pro- contempt or similar the event that him. against brought ceedings are at rejected be Should his contentions SCHOOLS, MINNEAPOLIS PUBLIC court, they will trial by time 1; Minne- Special District No. School ripe appellate review.
then be Education; apolis Catherine Board of omitted). (footnote Johnson, Super- Shreves, Chair; Id. S.Ct. Carol intendent, representative ca- in their Childs, discovery or- post-judgment Appellees. pacities, held tо of execution was der entered aid any- unsealed has Schwartz wishes which Mr. motion before us Mr. Schwartz's We have Bankruptcy Appellate thing with the to do that had been portion of the record unseal a issue which is sole jurisdiction, Panel’s Bankruptcy This motion Court. sealed Nothing address. the material as moot. denied *2 Minnesota; Children’s Law Center of Minnesota; Hennepin-Car
ARC ARC
ver, Appellant. Amici on Behalf of
No. 02-1261.
United Appeals, States Court of
Eighth Circuit.
Submitted: Oct. 2002.
Filed: March *4 ARNOLD, SHEPPARD
MORRIS Judge. Circuit among question, raises This case student, others, of whether disabled free, CJN, call received we shall whom (FAPE) in public education appropriate required as third-grade year Education Act Disabilities Individuals with §§ (IDEA), 20 U.S.C. 1400—1487. did, focusing that he court1 held district con- and the on CJN’s academic his individualized to tailor tinuous efforts (IEP) to his behavioral plan education agree with the Because we challenges. FAPE, that CJN received district court assessment well its agree issues, we affirm. related *5 I. a FAPE under part providing
As IEP IDEA, must formulate a school unique child’s the disabled tailored to IEP § 1412. For an needs. U.S.C. muster, “rea must be pass substantive the child sonably calculated enable Hendrick benefits.” receive educational Rowley, Educ. v. Bd. Hudson Dist. 206-07, S.Ct. U.S. (1982). L.Ed.2d 690 le- boy with elеven-year-old CJN is an history long a brain and sions his special A education illness. psychiatric Paul, Goetz, argued, St. Amy Jane Schools, Public Minneapolis student Kane, on O’Sullivan (Margaret Minnesota (District) District Special School No. brief), appellant. for consistently kindergarten, CJN has since while nonethe- Booth, difficulties Minne- had behavioral argued, Laura Tubbs academically at an aver- progressing (Eric less Magnuson, on J. apolis, Minnesota rate. age brief), appellee. for year third-grade of his At the beginning placed SHEPPARD September, Before CJN was MORRIS BYE, elementary MAGILL, for needs ARNOLD, special program Circuit (SPEN) Keewaydin Elemen- classroom Judges. Montgomery, sota. Ann D. United 1. The Honorable Judge of Minne- for District States District
tary (moving School with a teacher from agreed mother then home, to instruction at school) but, prior his while he awaited day the re- after that began, instruction sults of a functional behavior assessment mother unilaterally decided to enroll CJN occupational therapy and an evaluation. Academy, private Calvin school that weeks, a fеw Within he had transferred to serves disabled and “at-risk” students. classroom, Elana Schroeder’s SPEN be- CJN’s mother then filed a complaint it provided cause more structure and be- with the Department Minnesota of Chil- cause her students higher functioned at a dren, Families and Learning, seeking, light academic level. In of CJN’s edu- among things, other a declaration that the needs, cational Ms. Schroeder offered him District provided had not CJN with a reduced homework assignments, more FAPE asking for reimbursement complete time to assignments, positive re- private school part tuition. As of this meeting inforcement for require- minimal proceeding, independent several evaluators ments, and a so-called economy sys- token CJN, analyzed the principal evaluation be- reinforcing good tem for behavior. ing provided by Dr. Ziegler. Richard March, CJN nevertheless misbehaved in Ms. IEP team reviewed Dr. Zie- times, Schroeder’s many classroom leading gler’s summary proposed that CJN be given to him being “time-outs” and placed even to in a Separate “Public Day School being physically epi- restrаined. Most setting” provide which could more mental sodes of restraint were for less than a health services than Whittier. CJN has minute, but there were days six on which continued to significant have CJN was restrained for five or more min- difficulties at Academy. Calvin utes: Restraint was used after began fact,” Based on 290 “findings of an inde- others, kicking hitting pencils, staff with or pendent *6 (HO) hearing officer found that banging against his head the wall. On one although CJN had received a FAPE December, occasion in a behavioral out- through grade, the second he had not re- police burst led to peri- intervention and a September ceived one from 2000 to Febru- hospitalization od of for CJN. This was his 2001, ary mainly because of the lack of day Keewaydin. last positive sufficient behavioral interventions October,
CJN’s IEP team convened in during period the latter and the amount of 2000, to discuss his evaluation physical results and restraint that subjected he was to. recent misbehavior again and In relief, November addition to granting other the to discuss his behavioral goals and the HO ordered the District to reimburse procedures tо be if required followed CJN CJN’s mother private for his school tuition Immediately restraint. holiday placed after the and him at through Calvin the break, CJN’s IEP team decided that he 2002-2003 year. ap- academic school On would divide his time peal, (HRO) between Whittier a state hearing review officer Elementary day School and a treatment reversed the HO’s decision that CJN did Whittier, program. At CJN was to re- not receive September a FAPE from help ceive the of a paraprofes- 2001, one-to-one February adopting 286 of the sional and was to participate point in a “findings HO’s making fact” and thirty- system reward good reinforce behavior. five more of his own. The district court CJN attended Whittier for only decision, seven half- affirmed the HRO’s giving due however, days, because an episode oc- weight to the HRO’s conclusions and fo- required curred that him to be taken to a cusing on CJN’s academic and local crisis center. The District and IEP his team’s continuous efforts to refine 1137, 118 140 L.Ed.2d U.S. account for his behavioral S.Ct. IEPs to (1998). eight meetings IEP team
challenges in its 29, 2000, and March August between the HO properly сontends that dis- the authorities credited the views of school
and, thus,
by believing
the HRO erred
“unsupported
them
credibili-
adopting
and
II.
ty-based findings of fact and conclusions.”
the
argues that
district
CJN first
this
what
reject
We
characterization of
the
to the
deferring
HO’s
court erred
did, however,
neither his addi-
HRO
since
credibility
law and
determi
conclusions of
findings nor his conclusions were
tional
particular,
CJN contends
nations.
credibility determinations differ-
based on
the HO’s credi
wrongly
HRO
reversed
the
HO,
those
much less on a
ent from
of the
the
bility
adopting
determinations when
facts.
underlying
different view of the
“findings of fact” and
thirty-five additional
admit that some confusion arises
We
law,” upon
making
“conclusions of
its
use
because both the HO
the HRO
the
the
court relied.
which
district
“findings
fact” and
terms
“conclusions of
law” in an unconventional fashion. For
IDEA,
a district court
Under
instance,
majority
of both the
vast
rec
must
the state administrative
review
“findings
of fact” are not
HO’s
HRO’s
ord,
requested,
if
hear additional evidence
found,
actually
HRO
facts that
HO or
and,
preponder
its decision on the
“basing
but
different
rather statements
what
evidencе,
grant such relief
ance of the
shall
during
witnesses testified to
the twelve
appropriate.”
the court determines is
days
hearings
before the HO. We be-
1415(i)(2)(B). Although
a dis
20 U.S.C.
HO
lieve that what
HRO
independently
trict court
determine
should
are
actually found as facts
located
their
FAPE,
has
it
whether the child
received
law,”
“conclusions of
intermixed with their
weight”
agency
give “due
decision-
must
legal
actual
conclusions.
Independent Sch. Dist. No.
making. See
given
hear-
Perhaps,
3000-page
HO
(8th Cir.1996).
S.D.,
F.3d
ing transcript,
be reasonable
would
‘due
give
weight’
“The district court must
believe that both the HO and HRO were
panel
because the administrative
had
*7
testimony
the
endorsing
findings
as
that
opportunity
observe the demeanor of
to
But even if we
to
they recited.
were
draw
the court
the witnesses and because
should
inference,
nothing
that
the record indi-
policy
not substitute its own educational
cates that the
believed dif-
HO
HRO
that
for those of the school authorities
ferent witnesses to be credible
believed
they
Missouri
review.” Strawn v.
State
occurred.
that different events
most
(8th
Educ.,
F.3d
Bd.
Cir.
of
instances,
the
of
“findings
HRO’s
fact”
2000).
here,
When, as
the relevant state
simply
matters that were al-
rehearsed
sys
has a two-tier administrative review
in the
ready acknowledged
“findings
HO’s
tem,
recognized that “[w]here
we have
of fact.”
there
between the
findings
is conflict
hearing panel
conclusions
the
and the
of
of
also
The HRO’s “conclusions
law”
do
officer,
may
reviewing
final
a court
choose not
a view
indicate that the HRO had
of
panel’s
hearing
findings
to credit
based
any
credibility
the
that
from
witness’s
differed
HO’s,
on
of the witnesses.” Fort
aby
analysis
observation
the
as revealed
close
Dist. v.
the
on
the
Clynes,
Zumwalt
119 F.3d
“conclusions of law” which
HRO
Sch.
(8th
Cir.1997),
denied,
Although
and the HO differed.
two
the
cert.
speak
private
HRO’s conclusions
of the “credible
school tuition. The
pro-
IDEA
evidence,” neither rested on the existence vides that
parents
the
of a child with a
“KJf
fact that the
HO did
acknowl- disability, who previously
special
received
Indeed,
edge as well.
in our best estima-
...,
education
enroll the child in private
tion,
interpret
we
phrase
the
“credible evi-
elementary or secondary school without
dence” in these twо conclusions to mean
the consent of or
public
referral
“evidence that suffices under
the law.”
agency, a court or a hearing
may
officer
Consequently,
interpret
we
the HRO’s
require
agency
par-
reimburse the
statements such as “there is no credible
ents for the cost of that enrollment if the
evidence that
...
these reviews
failed to court or hearing officer finds that
adequately assess the appropriateness of
agency had not made a [FAPE] available
IEP”
to mean
that he differed
to the child in a timely
prior
manner
respect
from the HO with
to the relevant
enrollment.”
U.S.C.
conclusion, i.e.,
legal
as to what constitutes
1412(a)(10)(C)(ii).
The district court de-
an adequate assessment of the appropri-
nied
pursuant
reimbursement
to its deci-
IEP,
ateness of the
respect
and not with
sion that CJN had
prior
received a FAPE
underlying
facts.
to his enrollment. We review the district
challenged any specif
CJN has not
court’s determination that CJN received a
legal
ic
conclusion of the
HRO errone
FAPE
Strawn,
de novo.
determinations and CJN maintains that expertise educational the district court they deference,” are owed significant holding erred provided that the District but this argument fails to recognize that him with a FAPE in his third-grade year the issue of whether a FAPE has been based on academic alone. CJN provided is a question mixed of law and contends that evidence of academic prog- fact, Strawn, 210 F.3d at and misap ress particularly irrelevant here “be- prehends the role reviewing officers cause his disability does not adversely af- two-tier administrative systems. review fect ability to learn” academically. With such questions, mixed the HRO is points to the physical amount of re- obligated to independently determine subject straint he which and the legal significance of the facts. That the high number of imposed “time-outs” on ultimately HRO sided with the District him, arguing they fundamentally are means neither necеssarily that he believed inconsistent with the existence of a FAPE. the school testimony authorities’ more CJN maintains that Minnesota law re- *8 than the HO did nor analysis that his was quires positive more behavioral reinforce- incorrect. It only means that the HRO analysis ment and more of CJN’s behav- reached a different conclusion based on his problems ioral than CJN received before understanding of the law. The district he can be said to have received FAPE. court did in giving not err weight” “due to the responds by HRO’s conclusion. The District stating that CJN’s IEPs analyzed need to be at the
III. adoption. time of their It asserts that his CJN also IEP challenges consistently the district team focused on CJN’s court’s decision not to reimburse problems CJN for behavioral using the information
638 if the ability even learning impede available, might a func- including had they that Id. learning disabled. is not occupa- individual and an assessment behavior tional the conclu supports squarely that The record It contends therapy evaluation. tional For here. the situation that is interven- sion that behavioral positive received how instance, rеport explains economy Ziegler’s Dr. of the token form in the tions for an responsible activity as well is system frontal lobe rewards point system his services, as affects ability plan such individual’s personalized as sufficient of informa paraprofes- “flexibility, generation one-to-one or her the attention working tion, impulses, fact that CJN to the points inhibition And sional. CJN, Ziegler aca- Dr. average rate at an relation to memory.” In progressing was associated some skills demically. “[w]hile states intact, it are functioning lobe with frontal outset, charac reject CJN’s we At the and emotional clear that his behavioral is holding as court’s the district terization associated and disinhibition dysregulation Al progress alone. on academic based can over lesion frontal striatal with his state that court does district though the developed skills adequately these whelm average learning within was “CJN utilize unable to he is point [the] where thus dem subjects, in academic range Unlike environment.” them in his school this progress,” onstrating educational 777, AC., at in 258 F.3d the situation court’s ob only after the came statement de falling behind where student “[wjith behavioral CJN’s servations disability, CJN learning spite the lack of mind, tailored the in team challenges academically at an always progressed has numerous “[a]t and that to his needs” IEP difficul rate. That his behavioral average continual IEP team was meetings, CJN’s contends, severe, makes are as CJN ties his instruction to refine making efforts ly more relevant progress even his academic court’s the district view programs.” We inquiry, because benefit to the educational prog of CJN’s academic acknowledgment IEPs were that his it demonstrates IEP was man only that mean ress to edu provide reasonably calculated to way in a problems aging CJN’s but, benefit, part, did so at least cational Indep. him to learn. Sch. that allowed Cf. as well. 769, A.C., F.3d No. Dist. Cir.2001). (8th progress, Academic has student a disabled When stated, “impor is an has Supreme Court it is major goals, to achieve some failed a dis whether ascertaining tant factor” many roads not at the to look back difficult reasonably calcu IEP was abled student’s exactly how reason takеn and ascertain benefit. provide educational lated to their at the time of IEPs were able his 202, 102 S.Ct. Rowley, 458 U.S. Sch. v. Concord Roland M. adoption. Cf. (1st Cir.1990), Comm., F.2d contention reject
We also CJN’s denied, 111 S.Ct. 499 U.S. cert. progress “has not academic that because (1991). difficulty this But 113 L.Ed.2d edu as C.J.N.’s among been identified recognized have precisely why we needs,” is of academic evidence cational from benefiting is long a student “[a]s particularly irrelevant education, AC., up educators it is 258 his recently As noted case. educational appropriate determine 776-77, Congress’s “at F.3d at least *9 Zumwalt, F.3d at Fort methodology.” problems emotional social and judgment, required, are not Specific 614. results from separable are not ipso facto 300.350(b), not an IEP need § C.F.R. Behavioral difficulties learning process.” here, designed poten- to maximize a student’s pointing be to four purported violations opportunity tial “commensurate with the of Minnesota rules governing behavioral children,” provided other see Rowley, In analyzing interventions. purport- these 189-198, Thus, at U.S. S.Ct. deficienciеs, ed we note that “proce- minor assuming arguendo posi- even that more dural and technical deficiencies in the tive behavior interventions could have support IEPs” cannot a claim that a employed, largely been that fact is irrele- FAPE S.D., has been denied. See 88 F.3d vant. record reveals that the District 562; Evans v. Dist. Doug- No. 17 cf. “good made a faith effort” to assist CJN in Neb., las County, 841 F.2d 830-31 achieving goals. his educational See 34 (8th Cir.1988). 300.350(a)(2). § Although C.F.R. is notes, As correctly CJN under the true, contends, that CJN District IDEA a disabled student’s IEP must only “offered services available within its “meet the standards of the State edu programs standardized for students with 1401(8)(B). cational agency.” § 20 U.S.C. disorders,” emotional and behavioral one Thus, provides “[w]hen state for edu reasonably can conclude from this record cational exceeding benefits the minimum appear
that more did not necessary at the federal standards set forth Rowley, under help time to him behaviorally. the state standards are ... enforceable Indeed, January at the IEP meeting, un- through the IDEA.” Blackmon ex rel. disputed testimony indicates that the Dis- Springfield Dist., Blackmon v. R-XII Sch. suggested trict a more setting structured (8th Cir.1999). 198 F.3d Whittier, as an alternative to but CJN’s mother chose Whittier instead. First, CJN contends that his IEP very
We of course
regret
much
inappropriate
was
because CJN was con
subject
was
to an increased
stantly being restrained in emergency situ
amount of restraint
third-grade
ations and his team
develop
failed to
year, but that fact alone
(BIP)
does
make his behavioral
program
intervention
inappropriate
education
within the mean
acquisition.
that focused on skill
CJN ar
ing
response
of the IDEA. In
to his diffi gues that such a BIP
required
be
culties, the
suspension
District made its
cause Minnesota has chosen to exceed the
lenient,
policy
suspending
more
him
requirements.
federal
in the
physical aggression
ease of
IDEA,
Under the
IEP teams are re-
adults, children,
property.
We believe quired
positive
to consider
in-
good
this demonstrates a
faith effort
appropriate.
terventions where
20 U.S.C.
moreover,
comports,
a previous
1414(d)(3)(B)(i).
law,
Under Minnesota
observation of ours that
suspen
schools’
objective
“[t]he
behaviorаl interven-
policies
sion
toward disabled students
pupils
tion must
acquire appropri-
be
“appropriate
must be
in the context of the
ate behaviors and
It
skills.
is critical that
A.C.,
IEP.” See
CJN contends that implicitly pointed restraints and when it to the existence “time-outs” were inappropriately positive used reinforcement mechanisms such *10 violation was immaterial. As potential economy system CJN’s
as the token
noted,
IEP team con-
already
have
CJN’s
IEP.
of conditional
sistently addressed the use
meeting,
IEP
Ms.
At
the October
but a
meetings,
in their IEP
procedures
a BIP that includ-
proposed
had
Schroeder
moth-
adopted
because of his
BIP was
meсha-
positive reinforcement
ed both
disagreement.
believe that
er’s
We
conditional
what is called
well as
nisms as
guaran-
is to
purpose of the relevant rule
re-
physical
and
(e.g., time-outs
procedures
IEP
aware that condi-
tee that the
team is
however,
straint).
adopted,
No BIP was
employed and
procedures have been
tional
disagreement
mother’s
because of CJN’s
BIP,
develop a
the IEP team to
to allow
They discussed the
proposal.
with the
Minnesota law conditional
because under
November, at which time
again
matter
in an emer-
procedures can be used either
sug-
the team’s
dismissed
mother
(as
pursuant
to a BIP
situation or
gency
counterproductive.
Janu-
as
gestions
5A(1).
IEP),
subp.
That
part of an
see id.
was in the
at Whittier
ary, CJN’s teacher
attempt
and the
requisite awareness
plan,
a
but CJN was
developing
of
process
here. Fail-
develop
already
a BIP
existed
her classroom before she
withdrawn from
immaterial.
meetings
ure to hold'more
is
Rowley’s warning
Heeding
finished it.
im-
careful to avoid
“courts must be
that
addition,
points, in
tо a state re-
CJN
educational
preferable
their view of
posing
identify
that IEP teams
“the
quirement
States,”
207,
at
458 U.S.
upon
methods
frequency
severity
target
and
behaviors
weight”
“due
giving
and
S.Ct.
procedure
for which the conditional
is be-
sufficiency,
implicit decision
the HRO’s
using
before
conditional
ing considered”
that the failure
devel-
we do not believe
however,
procedures.
provision,
Id. This
fairly
said to constitute
op a BIP could
be
here,
pertains only
apply
does not
as
in these circumstances.
of a FAPE
a denial
procedures
part
to as
conditional
resorted
emergency
of a BIP and not to
situations
also contends
the num
CJN
like the ones
the instant case.
meetings
team
was insufficient
ber of IEP
rule
providing
in view of a Minnesota
argues finally
“time
procedures are
when conditional
used
than an hour violate state
outs” of more
“twice in a month
emergency
situation
se,
a
per
citing
standards
state administra
pupil’s pattern of behavior is
[when]
that “[s]eclusion
tive decision that holds
meeting
a team
must be
emerging ...
defensible,
periods may
for brief
be
but
IEP
pupil’s
to determine if the
called
for one to six hours forc
not confinement
days
... no later than five school
adequate
discomfort, making
into
ing
[the
student
emergency procedures
after
have com
punitive, negative
inter
issue]
action
3525.2900, subp.
R.
5C.
menced.” Minn.
under Minn. R.
vention”
3525.0850. Com
rule.
The district court did not discuss this
(State
#1408,
plaint
p.16
File
Educ.
2002).
March
But close
Agency
rule was violated if one views the
Minn.
This
Department
analysis
the Minnesota
five-day requirement
restarting
with ev-
Children,
Learning’s
in-
emergency interventions. For
Families
state
ery two
stance,
that its conclusion
procedures
conditional
were used ment
this file reveals
10, 11,
of the
only
was based both on the duration
on October
but
the fact that the “time-out”
meetings
IEP
were on October 10
“time-out” and
sit,
not, however,
place
had no
for the child to
14. We need
re-
room
November
Further
interpreta- which is not the situation here.
solve the nuances of the rule’s
more,
tion,
of more than an
reveals that
time-outs
because the record
*11
Crawford,
half-days
in the seven
at
disabled at
hour occurred
the district court did
not err in
Any
failing
violatiоn of the State’s rule
to order
Whittier.
Calvin as CJN’s
prospective placement.
a larger
would therefore be immaterial to
determination of whether reimbursement
S.D.,
V.
required.
We that all the other argues finally CJN the dis purported deficiencies to which CJN di- trict court erred determining that CJN attention, rects our such as the absence of was not entitled to remain pend at Calvin specifically Separate “Public identified ing a final determination on the of merits (the Day in the IEP IEP School” March appeal, this given the HO’s decision that setting listed the relevant level and appropriate prospective Calvin was the location) precise equally not a are immate- placement. Under the IDEA’S so-called rial to our discussion the given February “stay-put” provision, “during the pendency decision to enroll in private CJN school. any 1415], § of proceedings [under unless Accordingly, the district court did not err the State or local educational agency and in determining provided that the District parents agree, otherwise the child shall third-grade year CJN with a FAPE his remain the then-current educational in denying request CJN’s mother’s for placement of such child ... until all such tuition reimbursement. proceedings completed.” have been § 1415(j). U.S.C. CJN’s mother and the
IV.
agreement
District reached an interim
pay
the District would
for
CJN next maintains that the dis
CJN
attend
4, 2002,
February
they
Calvin until
by
ordering
pro
trict court erred
but
spective placement
Calvin,
agreed
agreement
also
that this
at
since that
would not
affect
“stay-put” placement.
school offers more interaction with chil
district court held that
are
CJN’s mother was
dren who
not disabled than Crawford
responsible
private
for
school tuition after
Academy,
currently proposed
“Public
February 4.
Separate Day
disagree.
School.” We
expresses
While
is true that the IDEA
argues
CJN
that the HO’s decision in
strong preference
in favor of disabled favor of
created an agreement
attending regular
children
change
“stay-put” placement.
classes with
We dis-
disabled,
agree.
children who are not
see 20
recognize
regula-
We
that federal
1412(5) (1994),
§
Supreme
U.S.C.
provide
tions
of a
“[i]f
decision
pre
has held that
hеaring
Court
this creates a
in a
process hearing
officer
due
sumption
public
in favor of
place
by
school
conducted
agency]
[state education
ment,
Burlington
see School
Comm.
or a State review official in an administra-
of
Mass.,
Department
Educ.
appeal agrees
parents
U.S.
tive
with the child’s
of
359, 373,
1996,
105 S.Ct.
85 L.Ed.2d
change
placement
appropriate,
385 that a
is
(1985).
have stated that the
placement
We
IDEA’S that
must
treated
be
objective is satisfied when there are dis
agreement between the State or local
agency
parents
abled students and students who are not
purposes
and the
[stay-put
placement].”
disabled
the same school. Mark A. v.
34 C.F.R.
300.514(c).
§
Agency,
Grant Wood Area Educ.
795 F.2d
But neither of the válterna-
(8th
52,
Cir.1986),
denied,
cert.
tive
for a stay-put agreement
U.S.
conditions
is
(1987).
law,
107 S.Ct.
sive outbursts at at care, day where his behavior would VII. point escalate to the of threats and vio- affirm the Accordingly, judgment requested lence. His mother the District the district court. him placement special to evaluate education, eventually placed and he BYE, Judge, dissenting. Circuit special education. portrays The record this case a clear *13 problems CJN’s behavior continued adapted contrast. When the District its Gary while at Parkview. a Berg, District needs, approach unique to meet CJN’s he employee identified as a “Behavior Per- made some on his behavioral dis- son,” worked with CJN through kinder- expected But abilities. when the District garten grade. and first In the beginning CJN’s behavior to conform to its struc- grade year, spent of his first a great CJN approach, began tured and inflexible he time-outs, deal of time in un- which were requires self-destruct. Because the IDEA regulating successful in his behavior. He adapt “unique the District to to a child’s was transferred to another teacher and needs,” 1400(d)(1), rather than U.S.C. responded favorably more to a behavior ap- child to the District’s “normal” program by Berg initiated that utilized I proach, respectfully dissent. replacement behaviors and in- role-play part, Berg’s system stead of time-outs. In I signal allowed CJN to when he felt he explanation I a start with more-detailed needed to be out of the classroom. CJN upon background, of this case’s based classroom, would remove himself from the findings independent hearing of the officer go Berg, and sometimes until visit (HO). ready felt he was to return CJN to the on CJN was born December 1991. classroom. four, he ages Between the of two and During the summer between first and upper respiratory suffered from chronic grade, occupa- received an second high
infections and consistent fevers. (OT) therapy tional evaluation. eval- expe- 1994-95 During the winter season he uation found CJN had excessive tactile high rienсed four seizures as a result of (e.g., sensitivities irritated labels on began experiencing fevers. 1999 he clothing), grooming was averse to activi- performed An headaches. MRI Febru- ties, active, overly was had a moderate to ary atrophy 2000 revealed lesions and sensory high degree of defensiveness right frontal lobe of his brain. CJN’s smell, touch, sound, reactions injury likely was brain most due to the stimuli, engaged visual and sometimes (nerve infections, previous demyelination self-injurious behavior. The evaluation damage), possibly or a stroke. The frontal mini- “calming recommended activities” to of the brain is associated with lobe self- becoming mize chances of over- CJN’s skills, regulation capacity such as the leading to an stimulated and outburst. behavior, inappropriate inhibit and to con- calming heavy activities included These trol emotions. large body, of his work to use muscles furniture, carrying objects, moving at an problems began CJN’s emotional such as push-ups. The evaluation also early age. kindergarten doing When he started or a fit activities, were closer classrоom such as suck- Schroeder’s oral recommended Second, straw, after academically for CJN. through ing thick substances summer, In- CJN’s spring and successful chewing gum. (IEP) Plan team Education dividualized (the 1999- grade of second At the start ready responsi- more he was believed condition deterio- year) 2000 school bility and structure. removed 1999 he was In October rated. in Ms. deteriorated quickly His condition in mid-November while from school Despite prior classroom. Schroeder’s aggres- more medication psychiatric CJN, approach with of a time-out failures eventually hospital- sively introduced^ system a time-out Ms. used Schroeder days, care for nine psychiatric ized for problems. to handle CJN’s behavioral day-treatment by a three-week followed implement the moth- The District failed to he returned to school When program. calming to use the er’s recommendations suggested that CJN Berg March in the OT evalu- techniques recommended Elementary Needs Special attend implement a District failed to ation. The (SPEN) by Mary taught classroom *14 system with immediate rewards/conse- sрent Marcy CJN Thompson at School. be- quences appropriate/inappropriate for March, Thompson’s in May and April havior, by used approach or the successful in room, being hospitalized again prior to in Berg grade. while was second CJN some success Thompson had May. Ms. implement to the moth- The District failed CJN, him as “a beautiful describing with assistance request er’s for one-on-one child, very sensitive” but very intelligent, the summer proved during successful needs with lots of senso- “very with severe ex- Essentially, 2000. Ms. Schroeder issues, neurological process- ry and some to her struc- pected adapt to himself CJN #42, Findings of Fact ing HO issues.” than approach, tured rather Schroeder Thompson placement with Add. CJN’s approach spe- to meet CJN’s adapting her pro- by a successful summer was followed The HO concluded “the Stu- cial needs. Center, Guidance gram at Child Washburn expected program fit into the dent was privately initiated. She which his mother adjusted program was not to meet and the Brown, a school district em- Joseph hired Conclu- the needs of the Studеnt.” HO in Ms. worked with CJN ployee who 12, App. # at 61. sions classroom, to be CJN’s one- Thompson’s during program. the summer be- apparently on-one aide Ms. did not Schroeder instead, disabled, but, a lieve was CJN (2000-2001 year), school grade In third In a manipulative controlling and child. programs taught by Ms. Marcy School in phone during call the time CJN was Ms. Keewaydin Thompson moved to School. classroom, told Schroeder Schroeder’s Thompson Kee- with Ms. CJN moved frontal mother that her claim of CJN’s grade in her waydin, and started third injury simply an excuse lobe brain weeks, a few CJN classroom. But after to do. to do what he wanted allowing CJN special education class- transferred to a (an edu- of this combination taught by room Elana Schroeder. The The results disability who discredited the child’s gave District two reasons for the transfer. cator First, Thompson’s expected in the child to conform be- the students Ms. and approach teacher’s “normal” a academic level havior to the classroom were at lower (whose approach to adjusting rather than her than CJN academic abilities were needs) unique meet the child’s behavioral average impeded by but his behavioral outbursts wors- in disastrous. CJN’s problems), and the students Ms. were time-outs, CJN fared no better at Whittier. Whit- of the use ened as a result tier also utilized the ineffective time-out During experienced. he and the seclusion outbursts, system to with address CJN’s 2000, September day period a fourteen consequences. even more serious CJN at- days in seclu- spent part of seven CJN just days tended seven at Whittier. On From having been restrained. sion after days four of those he was locked seclu- was re- 9 to November CJN October periods sion for excessive of time without days, all at a on more than half of strained release, any criteria for without his than other stu- greater rate eleven times authority, mother’s consent or di- in Ms. Schroeder’s class. CJN dents opposition opinion rect to the of his cur- kick, abuse, spit at verbally would provider. Finally, rent mental health on him. personnel who restrained District 24, 2001, January while in the locked seclu- teacher and other He would threaten his room, attempted sion suicide bring gun by claiming he would students wrapping his shirtsleeve around his neck. following day. The or knife to school police again, were summoned and re- point they ad- District reached the where grader moved this third from the school it would resort vised CJN’s mother Thus, months, handcuffs. five while the out- police intervention to deal CJN’s approach already school used time-out bursts. during unsuccessful shown be grades, first and second all the exactly that is On November during previous made progress CJN much time as happened. what With as spring replaced by had been summer at school in spending CJN was restraints ideations. with the *15 suicidal Frustrated seclusion, understandably he would or failures, District’s mother found a of November get morning off the bus the could, did, private school that and meet pushed and kicked staff and 16. He By needs. unique her child’s yelled kill them. He and threatened to hearings in the time the HO held its peers, wiped his mucus on threatened and April March and of CJN had made after he them. He continued his outburst Acade- significant progress at the Calvin Finally, got to Ms. Schroeder’s classroom. Academy educators had my. The Calvin policе called and removed this were police not resorted to locked seclusion or grader third from school. intervention, peri- the need for even short 6, 2000, punched On December CJN (less minutes) any of re- ods than five That lip. District staff member subsided, substantially and straint had told CJN’s moth- day, same Ms. Schroeder at had less behavioral outbursts CJN problem, was the that Schroe- er in learn- home and an increased interest classroom, him in had not wanted her der friends, ing, and school. continue to initiate
and that she would
II
opportunity.
police
every
intervention at
requested an
day,
The next
CJN’s mother
ma-
me about the
things
Three
concern
CJN,
independent
objected
of
evaluation
foremost,
not-
jority’s decision. First
police
to address his dis-
intervention
contrary,
withstanding its
to the
assertion
school,
while in
ability-related
essentially
behaviors
majority
I believe the
decision
class-
duty
and asked for a transfer to another
satisfy
the District can
its
holds
finally
long
room. The district
enrolled CJN
a FAPE so
as a student
provide
disability
at Whittier Ele-
makes academic
another SPEN classroom
a behaviоral
myopic
reflects a
view
progress.
Such
mentary
January
on
him
acceptable norms that renders
cially
The educational
the IDEA.
purpose
meaning
of the
reasonably
‘handicapped’ within
IEP must be
of an
benefits
EHA”).
more than academic
to address
calculated
we stated in In
disability. As
ability or
be concluded it had Robert had made. We factors. sensory, or health not:
(B) maintain inability An to build or review of the record convinces us Our
satisfactory interpersonal
rela-
panel
discounting
that the
did not err
peers and teach-
tionships with
the evidence of de minimis academic
ers.
panel pointed
social
where the
specific
in the record contra-
evidence
(C) Inappropriate types of behavior
dicting
and noted that
such benefit
normal cir-
feelings under
slight benefit obtained was lost due to
cumstances.
that went unchecked
problems
behavior
(D)
pervasive
A
mood
general
ability
and interfered with his
to obtain
depression.
unhappiness or
*16
education.
a benefit from his
(E)
develop physical
tendency
A
added).
(emphasis
Id. at 1029
or fears associated
symptoms
prob-
personal
notes,
or school
with
majority correctly
As the
aca-
may
“important
lems.
progress
demic
be
in
an IEP
ascertaining
factor”
whethеr
300.7(c)(4)(i).
34 C.F.R.
benefit, ante at
provides educational
whole,
a
the law
naturally
Read
and as
(citing Hendrick Hudson Dist. Bd. of
identify
and the
a class of
regulations
176, 203, 102
Rowley,
Educ. v.
458 U.S.
in
only
children
who are disabled
3034,
(1982)),
but it
S.Ct.
73 L.Ed.2d
emotional con-
sense that their abnormal
The
clearly
only
is
not the
factor.
Su-
nor-
prevent
choosing
ditions
them from
nature of
preme Court noted the limited
responses
mal
to normal situations. See
Rowley, stating:
in
holding
its
Honig,
Superintendent
California
Doe,
305,
may
difficulty
child
have little
com-
Public
484 U.S.
One
Instruction
(1988)
320,
592,
successfully in an academic set-
peting
458 U.S.
IEP,
ety
provi-
or the District’s
CJN’s
Rowley
explained
Congress
also
instance, solely by
sion of a FAPE in this
IDEA,
handi-
part,
so that
passed the
performance
English
in math or
or
CJN’s
could “achieve a reason-
capped children
Rather,
Geography.
determining
self-sufficiency” and “be-
degree of
able
FAPE,
provided
whether the District
part
society.”
contributing
of our
come
must also determine whether CJN re-
at 201 n.
If a child has a
actually
ability
counter-productive
services,
special
him for
education
qualifies
problems. There
exacerbated his behavior
educational benefit
we do not measure the
system and use
is no evidence the time-out
attending speech therapy
from
he derives
*17
taught CJN to control his
of restraints
if
solely by
math class. Or
Nor is there evidence the Dis-
behavior.
qualifies
special
child
education be-
police
not
trict’s ultimate resort to
intervention
reading impairment,
cause of a
we do
10,
indepen-
will
toward
example,
[CJN]
CJN's IPE dated October
Goal 3:
work
2. For
following goals:
the
positive
contains
four
dently solving problems in a
man-
improve his
anger
Goal 1:
will continue to
by using
[CJN]
and
ner
common sense
ap-
ability
and act
to maintain self-control
techniques.
management
setting.
propriately in the school
develop
build
Goal 4:
will
skills to
[CJN]
improve
ability to
Goal 2:
will
[CJN]
friendships
recognize
and to
and maintain
work,
complete
comply
requests,
with
fol-
his own self-worth.
participate appropriately
low directions and
in class activities.
favor,
analysis
upon
in their
teach CJN how to become a
cer’s
based
would ever
panel’s ability
the
the
society.3
hearing
member of
to observe
productive
words,
witnesses.
In other
our deference
Second,
easily
how
the
I am troubled
the
reviewing
when
a conflict between
first
and conclusions were disre
findings
HO’s
pro-
and second tiers of an administrative
hearing review officer
garded by the
upon
ability
turn
one tier’s
cess should
court,
(HRO),
and this court.
the district
witnesses,
observe the demeanor of the
not
engage in a semantical debate
We can
upon
reviewing
whether the
tier sides for
portions of the
decision
about which
HO’s
(i.e.,
the
does or does
against
educators
“findings of fact” and which were
were
give
weight
sufficient
to the views of
of law.” But
the ultimate
“conclusions
educators).
case,
professional
In this
the
provid
FAPE
question whether
has been
ability
HO had the
to observe the wit-
fact,
question
a mixed
as
ed is
law
nesses,
not the HRO. The fact
the HO
majority recognizes.
ante at 637
the
See
discredited the views of the school authori-
Bd.
(citing Strawn Missouri State
ties,
gave
while the HRO
them more
(8th Cir.2000)).
Educ.,
210 F.3d
weight (just
opposite
of what occurred
where a state has a two-tier ad
cases
Zumwalt)
which
should not affect
ad-
system,
ministrative
and the courts are
body we defer to when re-
ministrative
to review а conflict between the
asked
viewing conflict between the two.
tiers,
conclusions of the two
I
findings and
Finally,
believe we should defer to the administra
I fear we allow Minnesota’s edu-
actually
opportunity
system
step
body
tive
had
cation
to take
backward with
approval
to observe
witnesses. See Fort Zum
our tacit
of the District’s use of
Clynes,
cope
walt
Dist. v.
Sch.
119 F.3d
610 restraint
with CJN’s behavioral
(8th Cir.1997).
The
outbursts.
HO concluded the District
comply
failed to
with certain
stan-
state
Our statement
Fort Zumwalt that a
punitive
dards
the use of
governing
may
hearing
“court
choose to credit the
deprivation procedures. Specifi-
aversive
panel’s findings based on observations of
cally, the HO found the District failed to
reject
reviewing
the witnesses and
offi-
3525.0850,
comply
Minn. R.
with
which
analysis
appear
cer’s
if it does not
to give
requires
“objective
that the
behav-
weight
profes-
sufficient
to the views of the
pupils
ioral intervention must be that
ac-
educators,” id.,
sional
half
states
quire appropriate behavior and skills.
It
equation.
In Fort Zumwalt we were faced
pro-
is critical that behaviоral intervention
with
a conflict which the first tier of the
grams
acquisition
focus on skills
rather
process
pro-
administrative
sided with the
merely
than
behavior reduction or elimina-
educators,
fessional
and the second tier
tion.”
against
oppo-
them. See id. at 611. If the
true,
case,
site had been
as it is in this
HO also found the District failed to
3525.1400,
might
easily
may
comply
said a court
Minn.
have
R.
which
hearing panel’s
pupils
choose to credit the
requires
dis-
receive education
missal
professional
atmosphere
views of the
“an
that is conducive to learn-
educators,
reject
reviewing
ing;
special physical,
offi-
and meet the child’s
*18
point,
disability.
3. On this first
I would add the follow-
to his behavioral
At the end he
ing:
rapidity
was,
all,
of CJN's decline
maltes
spending
after
half his time outside
abundantly
just
clear that it
matter of
up,
despondent
the classroom locked
and so
time before CJN’s academic
would
attempted
that he
suicide.
by
approach
have been affected
the District’s
essentially telling
ad-
are
school districts that
needs.” These
sensory, and emotional
adopted pursuant
copacetic
were
it’s
to deal with students with
rules
ministrative
121A.67,
requires
by punishing
§
which
them
Minn.Stat.
behavioral disabilities
positive
“promote
disability,
finding
the use of
rather than
the rules to
for their
encourage
or
problem.
and must
approaches
approach that addresses the
We
deprivation
require the use of aversive
tacitly approve
also
the District’s resort to
procedures.”
police
prob-
intervention for the behavioral
helped
by failing
lems it
create
to address
meet the standards of
The District must
disorder. That is
unique
behavioral
agency as an inte-
the state’s educational
clearly
message
not a
this court should
Rowley,
FAPE. See
gral part
providing
dispatch.
(holding
The HO ap- increasingly punitive in an
trapped disciplining, which resulted
proach to isolation, levels of time-out
increasing the Conclusions
and locked seclusion.” HO Neither the district App.
# at 61. addressed the HO’s
court or the HRO that the district violated Minn.
conclusion MISSOURI, ex rel. Jeremiah State of “increas- R. & 3525.1400with its 3525.0850 (Jay) NIXON, Attorney General, W. punitive approach disciplining.” ingly Plaintiff-Appellant, Furthermore, disconcerting I find most attempt explain away this court’s America, United States by suggesting
District’s violations to the CJN’s mother was obstacle Intervenor/Plaintiff- Appellant, in- adoption appropriate of an (BIP). program My review tervention record indicates that CJN’s mother the Dis- opposed suggested by the BIPs FAX, INC., a Texas AMERICAN BLAST they violated precisely
trict because corporation transact not authorized Minnesota law. foreign cor- in Missouri as business poration, Defendant-Appellee, tacit discouraged by
I am this court’s counter-productive approval of the use of Movant-Appellee. Fax.com, Inc. disciplinary measures. We punitive