FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT 02/16/2000 THOMAS K. KAHN CLERK PUBLISH

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 99-10140 D. C. Docket No. 97-CV-54-HLM WALKER COUNTY SCHOOL DISTRICT, JEWEL CAMPBELL, et al., Plaintiffs-Counterdefendants-Appellants, versus JENSINE BENNETT, a minor, by and through her parents and legal guardians, John & Denise Bennett, JOHN BENNETT, DENISE BENNETT, Defendants-Counterclaimants-Appellees.

Appeals from the United States District Court for the Northern District of Georgia (February 16, 2000) Before BIRCH and HULL, Circuit Judges, and HODGES*, Senior District Judge.

* Honorable Wm. Terrell Hodges, Senior U.S. District Judge for the Middle District of Florida, sitting by designation.1 The Act was substantially revised and re organized in 1997 by Pub. L. 105-17, June 4, 1997, 111 Stat. 37. However, the provisions pertinent to this appeal were not changed. This opinion will therefore cite the statute in its present form. 20 USC § 1440 et seq

. 2 See 20 USC § 1411.

3 See 20 USC § 1414.

4 See 20 USC § 1414(d). 2 HODGES, Senior District Judge: This appeal involves the individuals with Disabilities Education Act (the IDEA), 20 USC § 1440 et seq. 1 The court is required to interpret one of the provisions of the Act that has been the subject of attention by severa l other circuits, but not this

one. The stated purpose of the IDEA is to en sure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related servi ces designed to meet their unique needs. 20 USC § 1400(d)(1)(A). To effectuate that purpose fe deral funds are made available to state and local educational entities 2 which are required thr ough an evaluation process to identify children with disabilities 3 and to develop for each disabled child an annual individualized education program or IEP. 4 If the parents of a disabled child are5 See 20 USC § 1415(f). 3 dissatisfied with their child’s IEP, the statute requires the educational agency to afford them an impartial due process hearing. 5 Any party aggrieved by the re sult of the administrative proceedings in the state system has the right, under § 1415(I)(2), to bring a civil action in the district court, and In any action brought under this paragraph, the court - - (I) shall receive the record s of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall gran t such relief as the court determines is appropriate.
The Walker County School District was aggrieved by the result of administrative proceedings initiated under th e Act by the parents of Jensine Bennett. The Administrative Law Judge required the School District to reimburse the Bennetts for the cost of Jensine’s private sc hooling during the 1995-96 school year. The School District then brought this action in the district court under § 1415(I)(2) of the Act seeking review and reversal of that administrative decision. Invoking the6 To the extent this issue involves a question of law - - the interpretation of the statute - - our review is de novo . E.g. , United States v. Gilbert , 136 F.3d 1451 (11th Cir. 1998); Rodriguez v. J. D. Lamer , 60 F.3d 745, 747 (11th Cir. 1995); Morris v. Haran , 52 F.3d 947, 949 (11th Cir. 1995). To the extent the issue involves the district court’s evid entiary rulings, i.e., application of the properly construed statute in admitting or excluding evidence, we review those rulings for abuse of discretion. Taylor v. Food World, Inc. , 133 F.3d 1419, 1422 (11th Cir. 1998).

7 To the extent the district court found, as did the ALJ, that the 1995-96 IEP developed for Jensine failed to comply with the Act, the issue presents a mixed question of law and fact subject to de novo review. JSK v. Hendry County School Board , 941 F.2d 1563, 1571 (11th Cir. 1991). The district court’s specific findings of fact are reviewed for clear error. See e.g. , Jefferson County Board of Education v. Breen , 853 F.2d 853, 857 (11th Ci r. 1998), reh’g denied 864 F.2d 795 (11th Cir. Dec. 15, 1998). 4 statutory mandate that the c ourt “shall hear additional evidence at the request of a party,” the School District proposed that th e district court hear a substantial volume of testimonial and documentary eviden ce in addition to the record of the administrative proceedings developed in the state system. The district court refused to receive most of that ev idence and, acting on the existi ng record, proceeded to affirm the administrative decision. This appeal followed. Two issues are presented. First is the question whether the district court erred in refusing to receive and consider the evid ence the School District wished to offer in addition to the record of th e administrative proceedings. 6 The second issue is whether the district court erred in its judgment on the merits affirming the decision of the Administrative Law Judge. 75 We affirm the district court in both respects and conclude that we need to discuss only the evidentiary question as an issue of first impression in this circuit.

I Jensine Bennett was born on September 15, 1988 and was eight years old when this suit was brought in March, 1997. She was identified as an autistic child in 1991 when she was three years old. Jensine and her parents lived at the time, and still live, in Walker County, Georgia. The Walker County School District determined that Jensine, because of her autism, was a ch ild with a disability and was qualified for special educational services under the IDE A. An individualized educational program (IEP) was prepared and implemented for her without formal dispute during Jensine’s preschool years, 1991-92 through 1994-95. In her kindergarten class during the 1994-95 school year, Jensine sporadically engaged in self abusive acts, experienced other episodes of emotional outbursts, and lacked focus on classroom tasks. In th e spring of 1995 the School District prepared a proposed IEP for Jensine with respect to the 1995-96 school year. Meetings were held in June and August, 1995, but the proposed IEP was rejected by the Bennetts because, in their view, among other things, it did not provide an extended program during the summer months, and did not a fford occupational therapy services or8 This court has recognized that reimbursement is an available remedy when the public school IEP is found to be statutorily insu fficient and the private schooling chosen by the parents of a disabled child is found to be appropriate. See e.g. , Jefferson County Board of Education , 853 F.2d at 857.

9 The ALJ and the district court found that ther e was no applicable period of limitations and no laches on the part of the Bennetts in asking for the due process hearing some eleven months after their rejection of the 1995-96 IEP. No issue con cerning that conclusion is presented or decided on this appeal.

10 This court has previously held, following Board of Education v. Rowley , 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) and Todd D. v. Andrews , 933 F.2d 1576, reh’g denied , 943 F.2d 1316 (11th Cir. 1991), that each child a nd his or her IEP must be examin ed individually in determining whether the child has been provided “a basic floor of opportunity” that affords “some” educational benefit. The outcome need not maximize the child ’s education; adequacy must be determined on a case by case basis in the light of the child’s indi vidual needs. Board of Education of the Hendrick Hudson Central School District , Westchester County v. Rowley , 458 U.S. 176, 198, 203, 204, n.26, 102 S.Ct. 3034, 3046, 3049 and n.26, 73 L.Ed.2d 690 (1982). 6 sufficient one-on-one classroom assistance to cope with Jensine’s autistic frustration. The Bennetts thus declined the School Dist rict’s 1995-96 IEP, withdrew Jensine from the District’s school system, enrolled her in a private school for autistic children, and gave notice to the District that they intende d to seek reimbursement of the costs of that private schooling. 8 In July, 1996, the Bennetts requested a due process hearing under the IDEA to press their claim for reimbursement of the expense of Jensine’s education during the 1995-96 school year. 9 This placed in issue whet her the School District’s proposed IEP for Jensine during that year was suffi cient to provide her a “free appropriate public education” as require d by the Act, § 1400(d)(1)(A). 107 The Administrative Law Judge assigne d to hear the case under Georgia’s statutory scheme held a two day hearing in December, 1996. Extensive documentary evidence was presented and the testimony of both lay and expert witnesses was heard. The ALJ issued his decision in February , 1997. He found, as contended by the Bennetts, that the 1995-96 IEP prepared fo r Jensine by the School District did not comply with the IDEA as interpre ted by the Supreme Court in Rowley and did not fulfill Jensine’s right to a free appropriate public education. Specifically, the IEP was found to be deficient because it failed to provide (1) behavior management; (2) occupational therapy; (3) extended se rvices for twelve months; and (4) communication aids. The Bennetts were th erefore awarded the costs of Jensine’s private school education for the 1995-96 school year.

II In the district court the School Distri ct moved for an evidentiary hearing to present “additional evidence.” The court re quired a proffer of the evidence the School District wished to present. The Schoo l District responded by listing the names of nineteen witnesses (whose testimony was variously offered through the means of personal appearance, depositions or affidav its), plus three categories of tangible or documentary evidence. The district court then reviewed each item of the proffer,8 separately and individually. The court found that five of the witnesses had already testified to the same general subject matter at the administrative hearing, and that the proposed testimony of severa l of the remaining witnesses was already in the record in the form of their written reports or the testimony of other witnesses who had described their findings, so that, in either case, the proposed testimony before the district court would be cumu lative. In two instances the court found the proffered testimony to be irrelevant. The court also found that all of the proffered witnesses who had not already testified were available at the time of the administrative hearing; that no explanation was give n for not calling them at that time; and that permitting them to be called in the district court would raise the dual concerns of unfairly permitting the parties to reserve their be st evidence for trial while essentially converting an administrative revi ew proceeding into a trial de novo . Thus, with two minor exceptions, the district court conc luded that the admission of any of the additional evidence in the judicial review proceedings would not only be cumulative but would undercut or unduly minimize the stat utory role of the administrative process thereby resulting in an unnecessary expenditu re of judicial resources. In the end, therefore, the district court excluded all of the School District’s proffered evidence except for a portion of the deposition testim ony of one witness and some additional documentary evidence.11 Both the Sixth and the Ninth Circuits have noted that a motion for summary judgment under Federal Rule of Civil Procedure 56 may not be an appropriate procedural device for triggering a district court decision because the district court in reviewing the administrative record, whether additional evidence is taken or not, must weigh and decide disputed issues of fact, an improper exercise under Rule 56. Compare Capistrano , 59 F.3d at 891-92 and Doe v. Metropolitan Nashville Public Schools , 133 F.3d 384, 387 n.2 (Th Cir. 1998). Though the point seems arcane, it could be important in its influence upon the choice of the corr ect standard of review on appeal. The issue is not presented by this appeal and will be left for another day. 9 III Ordinarily, one expects judicial review of an administrative decision to be limited to the record before the administra tive body, and for the c ourt to be required to affirm if substantial evidence in the record supports the administrative determination. See Capistrano Unified School District v. Wartenburg , 59 F.3d 884, 891 (9th Cir. 1994). But the IDEA provision for judicial review has been described as “puzzling” (id . at 898) and “somewhat confusing.” Jefferson County Board of Education v. Alabama Department of Education , 853 F.2d 853, 856 (11th Cir. 1988), because it differs from the norm in a way thatproduces three distinct issues: (1) How much deference, if any, should be given to the administrative decision if additional evidence may be taken and the standard to be applied is the preponderance of the evidence? (2) What standard should be applied in deciding what “additional” evidence, if any, should be admitted in th e district court proceeding? And (3) What is the appropriate procedural mechanism to be implemented in the district court in bringing the case before the court for a final decision? 1110 The first of these issues was the focus of the Supreme Court’s decision in Board of Education v. Rowley , 458 U.S. 176, 102 S.Ct. 3034 (1982), and has since received the attention of this Court in Jefferson County Board of Education v. Alabama Department of Education , 853 F.2d 853 (11th Cir. 1988), and Doe v. Alabama Department of Education , 915 F.2d 651 (11th Cir. 1990). Essentially, the law is established by Rowley that the administrative decisi on in an IDEA case is entitled to due weight and the court must be careful not to substitute its judgment for that of the state educational authorities. Still, under Jefferson County Board of Educationand
Doe , the extent of the deference to be given to the administra tive decision is left to the sound discretion of the district court whic h must consider the administrative findings but is free to accept or reject them. It is the second of these issues that must now be decided in resolving this appeal. The leading decision on point is th e opinion of the Firs t Circuit in Town of Burlington v. Department of Education , 736 F.2d 773, 790-791 (1st Cir. 1984), aff’d ., 471 U.S. 359, 105 S.Ct. 1996 (1985). The Court held: We believe that the key to the revi ew authorized by the Act lies in the additional evidence clause. We cons true ‘additional’ in the ordinary sense of the word, Perrin v. United States , 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1980), to mean supplemental. Thus construed, this clause does not author ize witnesses at trial to repeat or embellish their prior administrative hearing testimony; this would be entirely inconsistent with the usua l meaning of ‘additional.’ We are11 fortified in this interpretation because it structurally assists in giving due weight to the administrative proceed ing, as Rowley requires. Rowley 458 U.S. at 206, 102 S.Ct. at 3051. * * * * * A trial court must make an independent ruling based on the preponderance of the evidence, but th e Act contemplates that the source of the evidence generally will be th e administrative hearing record, with some supplementation at trial. The reasons for supplementation will vary; they might include gaps in the administrative transcript owing to mechanical failure, unavailability of a witness, an improper exclusion of evidence by the administrative agency , and evidence concerning relevant events occurring subsequent to the ad ministrative hearing. The starting point for determining what additional evidence should be received, however, is the record of the administrative proceeding.
* * * * * We decline to adopt the rule urge d by defendants that the appropriate construction is to disallow testimony from all who did, or could have, testified before the administrative h earing. We believe that, although an appropriate limit in many cases, a rigi d rule to this effect would unduly limit a court’s discretion and constric t its ability to form the independent judgment Congress expressly directed.
* * * * * The determination of what is ‘additional’ evidence must be left to the discretion of the trial court which must be careful not to allow such evidence to change the ch aracter of the hearing fro m one of review to a trial de novo. A practical approach, we believe, is that an administrative hearing witness is rebuttably presumed to be foreclosed from testifying at trial. A motion may then be made to allow such a witness to testify within specified limits stating the justification for the testimony. In ruling on motions for witnesses to te stify, a court should weigh heavily the important concerns of not allowing a party to undercut the statutory role of administrative expertise, th e unfairness involved in one party’s reserving its best evidence for trial, the reason the witness did not testify at the administrative hearing, and th e conservation of judicial resources.12 It should also be noted that the enumeration of factors given by the First Circuit in Town of Burlingtonas possible reasons for supplementation of the evidence is a non-exhaustive list. The availability or unavailability of discovery procedures in the state administrative system, for example, might properly influence the extent to which the district court allows discovery in the review proceedings before deciding whether to adm it or refuse any proffered evidence. The district court also has broad discretion, in our view, with respect to the form in which any supplemental evidence is received, i.e., deposition transcripts or affidavits in lieu of personal appearance. 12 The Court should look with a critical ey e on a claim, such as made here, that the credibility of a witness is a central issue. The claim of credibility should not be an ‘open sesame’ fo r additional evid ence. Such an approach followed by a pretrial order that identifies who may testify and limits the scope of the testimony will en able the court to avoid a trial de novo. (internal citations omitted) We agree with this well reasoned resoluti on of the issue by the First Circuit and now align this court with the Seventh and Ninth Circuits in adopting the same holding. 12 See Monticello School District v. George L. , 102 F.3d 895, 901 (7th Cir. 1996), and Ojai Unified School District v. Jackson , 4 F.3d 1467, 1473 and n.7 (9th Cir. 1993), cert . denied , 513 U.S. 825, 115 S.Ct. 90, 130 L.Ed.2d 41 (1994). See also Susan N. v. Wilson School District , 70 F.3d 751, 759-60 (3d Cir. 1995), and Independent School District No. 283 v. S.D. , 88 F.3d 556, 560 (8th Cir. 1996), in which the Third and the Eighth Circuits take a restrictive approach to the issue without expressly adopting the rule of Town of Burlington

. The only criticism of the Town of Burlington holding, which we adopt today, comes from the Sixth Circuit in Metropolitan Government of Nashville and Davidson13 County v. Cook , 915 F.2d 232 (6th Cir. 1990). The court there declined to approve the First Circuit’s definition of “additional” to mean “supplemental” evidence; but the ultimate holding in Cook left the admission or exclusion of evidence in an IDEA proceeding to the sound discretion of the dist rict court so that the difference between the First and Sixth Circuits on this point would seem to be more semantical than substantive. See id. at 234-35.

IV Applying our construction of the statute to the evidentiary rulings made by the district court, we have no hesitancy in c oncluding that the court acted well within its discretion, and for the reasons it gave , in admitting and excluding the evidence proffered to it by the School District. We also approve the procedure followed by the district court in requiring a detailed proffer from the proponent of the additional evidence so that an appropriate dete rmination could be made concerning its admissibility under the statute as we have construed it. Finally, on the merits, we conclude thatthe district court did not err in its decision that the School District is require d to reimburse the Bennetts for the costs of educating Jensine at the Orange Grove Center during the 1995-96 school year. The judgment of the district court is in all respects AFFIRMED14