United States Court of Appeals 

### FOR THE EIGHTH CIRCUIT

___________ Nos. 96-2503/2504

___________ Fort Zumwalt School District, *
* Appellant/Cross-Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri. Robert Clynes; Ann Clynes, as * Parents and Next Friends of * Nicholas Clynes, *
* Appellee/Cross-Appellant. *

___________ Submitted: April 16, 1997 Filed: July 10, 1997

___________ Before FAGG, FLOYD R. GIBSON, and MURPHY, Circuit Judges.

___________ MURPHY, Circuit Judge.

This case involves competing interests under the Individuals wit h Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1499. Robert and Ann Clynes sued the Fort Zumwalt public school district to obtain reimbursemen t for the cost of sending their son Nicholas to a private school for learnin g disabled children for the 1991-92 and 1992-93 school years. The district court awarded reimbursement to the Clynes, but denied their additiona l claims for damages and interest. Both sides appeal from the aspects of th e judgment unfavorable to them. We affirm in part and reverse in part.

## -2- I.

Nicholas Clynes was diagnosed with a learning disability in reading and math when he was in kindergarten at Hawthorn e school, which is part of the Fort Zumwalt school district. The school responded by developing an individualized educational plan (IEP) each year as required by IDEA to set out a curriculum to address his disabilities. See 20 U.S.C. § 1414a(5). The IEPs placed Nicholas in a classroom for learning disabled students par t of each school day for individualized instructio n in reading and math, but he spent the rest of the day with non-disabled students. Nicholas attende d Hawthorne from kinder garten through third grade, and each year the school altered the amount of specialized instruction he received in response to his needs.

Nicholas' parents attended meetings each year in which the IEPs were discusse d. The school district provided the Clynes with a writte n exp lanation of their rights under IDEA, and Mrs. Clynes later testifie d that she had read this information. In May 1991, the Clynes met wit h district representatives to discuss the IEP for 1991-92. They expressed

con cern with their son's progress and the way his needs were bein g addressed at Hawthorne. They did not sign the IEP and told the district that they had enrolle d Nicholas for summer school at Churchill, a private school for the learning disabled. Mrs. Clynes testified that she ha d indicated at the meeting that she preferred pos tponing any final decision

on the IEP until "the first or second week of the fall, at that time I wil l have more information." The IEP itself stated that it would be reviewed in September.

During the summer of 1991 Nicholas w as admitted by Churchill for the schoo l year that would begin in the fall of 1991. In August the Clyne s informed the school district that Nicholas was going to attend Churchill for the 1991-92 school year. He attended the school from the summer o f 1991 through at least the spring of 1993.

## -3- IDEA requires that a disabled child be provided with access to a free appropriate public education. Board of Educ. v. Rowley , 458 U.S. 176, 203 (1982). Parents who believe their child's education falls short of th e federal standard may obtain a state administrative due process hearing, an d in some cases may be awarded reimbursement to pay for private school costs

. See 20 U.S.C. 1415(b)(2) (review process); School Comm. of Burlington, Mas s. v. Department of Educ. , 471 U.S. 359, 372 (1985) (reimbursement)

. The final determination of the state administrative process may be appeale d to federal district court, 20 U.S.C. 1415(e)(2), and that court is to make

an indepen dent decision of the issues based on a preponderance of th e evid ence, giving "due weight" to the state administrative proceedings

. Rowley , 458 U.S. at 2 05-06. The level of deference accorded to the state procee dings is less than required under the substantial evidence tes t commonly applied in federal administrative law cases, but consideratio n should be given to the fact that the state hearing panel has had th e opp ortunity to observe the demeanor of the witnesses. Independent Sch

. Dist. No. 283 v. S.D. , 88 F.3d 556, 561 (8th Cir. 1996). Where there is

a conflict between the findings and conclusions of the hearing panel and the final reviewing officer, a court may choose to credit the hearin g panel's findings based on observation of the witnesses and reject th e reviewi ng officer's analysis if it does not appear to give sufficien t wei ght to the views of the professional educators. See id. Finally , courts are not to "substitute their own notions of sound educational polic y for those of the scho ol authorities which they review." Rowley , 458 U.S. at 206.

The Clyne s invoked the administrative process to seek reimbursement for the cost of sendi ng Nicholas to Churchill for the 1991-92 and 1992-93 school years. At the state hearing, both sides presented testimony an d offere d documentary evidence, and the hearing panel, composed of tw o educators and a lay person, applied the federal legal standard under IDEA. The panel denied the Clynes' claim for reimbursement for both school years , conclu ding that Nicholas had been making progress at Hawthorne, hi s disability did not warrant complete segregation from non-disabled students , and t he school district was prepared to provide a free adequate publi c education to Nicholas.

## The SLRO's award included reimbursement for the 1991 summer sch ool session 1 

## because he found Nicholas' participation in that session had been necessary in order to attend Churchill for the next school year.
-4- The C lynes appealed this decision to a state level review office r (SLRO). The SLRO sta ted that it was not clear that the hearing panel had determined whether the education offered to Nicholas by the district was appro priate and that the panel had improperly placed the burden on th e Clynes to show that their son was regressing at Hawthorne. The SLR O inferred that the district had not offered an adequate education program for 1991-92 because the panel had proposed significant changes in the 1992

- 93 IEP as a result of Nicholas’ experience at Churchill. The SLR O describ ed the prior IEPs as "hit and miss" and as not having produced a demonstrable plan of progress. He believed the district had not identifie d proble mareas or applied appropriate resources in order to achiev e satisf actory results and that it had not explained why Nicholas ' performance is "the best that can be expected from him." The SLRO reverse d the hearin g panel decision with regard to the 1991-92 school year an d ordered reimbursement through the end of October 1992. Reimbursemen t 1 beyond that time would only be available if the Clynes could demonstrate that they had been required to pre-pay tuition at Churchill without th e right of refund.

The school district appealed the SLRO's decision to federal court

. After a hearing the district court awarded reimb ursement to the Clynes for bot h the 1991-92 and 1992-93 school years, as well as the 1991 summe r school session. The court concluded that the 1991-92 IEP had not offered Nicholas a free appro priate public education and that Nicholas' education at C hurchill complied with IDEA. It examined Nicholas' grades, tes t scores, and advancement from grade to grade at Hawthorne and found tha t Nicholas had not benefited "sufficiently" from his education there and tha t the 1991-92 IEP was inadequate. The IEP merely increased Nicholas' time in t he learning disabled classroom and continued the past methods o f teaching him to read, but it did not sufficientl y address his needs or his behavioral problems. The court also

## -5-

believed the 1992-93 IEP did not comply with IDEA requirements because it did not offer appropr iate reading instruction, was not designed to enable Nicholas to "recogniz e and accept his learning disabilities," and did not offer a completely segregated environment, which the court believed was th e only appropriate environment for him. It primarily based its order o f reimbursement for the 1992-93 school year, however, on the fact that the IEP had n ot been developed until after Nicholas had started the year a t Churchill, and the Clynes had contracted to pay for the entire year.

II.

Whether a school district has offered a free appropriate publi c education is a mixed question of fact and law and the district court' s ultimate determination is reviewed de novo. Cap istrano Unified Sch. Dist.

v. Wartenberg , 59 F.3d 884, 891 (9th Cir. 1995) Hampton Sch. Dist. v

. Dobrowolski , 976 F.2d 48, 52 (1st Cir. 1992); but see Doyle v. Arlington County Sc h. Bd. , 953 F.2d 100, 105 (4th Cir. 1991) ("whether or not a programis appropriate is a matter of fact"). The standard of review in this circuit is de no vo as to the ultimate finding of the district court. See Petersen v. Hastings Pub. Sch. , 31 F.3d 705, 707-08 (8th Cir. 1994). IDEArequires a school district to offer an educational progra m "re asonably calculated to enable the child to receive educationa l benefits." Petersen , 31 F.3d at 707 (quoting Rowley , 458 U.S. at 206-07)

. Par ents who believe their child will not receive an educational benefi t under an IEP may enroll the child in a private school and later obtai n reimbursement for tho se costs if a federal court concludes (1) the school district did not offer a free appropriate public education; and (2) th e private school placement complied with IDEA. Florence County Sch. Dist. Four v. Carter , 510 U .S. 7, 13-14 (1993). Parents who enroll their child in private school without the approval of the pu blic school district do so with the risk they will not receive reimbursemen t for their costs. School Comm. of Burlington , 471 U.S. at 373-74; Florence County , 510 U.S. at 15.

## The SLRO stated that the district must show that it has "either produce d 2 

## satisfactory results or has an explanation why t he student's performance is the best that can be expected from him." Under IDEA a school district is not required to maximize a student's potential. There w as testimony at the state hearing that school authorities had wante d 3 

## Nicho las to repeat kindergarten, but that the Clynes insisted that Hawthorne promote him to first grade.
-6- The goal of IDEA is to provide access to public education for al l handicapped students. See Rowley , 458 U.S. at 179-81. Congress provided limited resources to the states to implement the policy of educating all disabled students, and the sufficiency of that e ducation must be evaluated in light of the available resources. A.W. v. Nor thwest R-1 Sch. Dist. , 813 F.2d 158, 164 (8th Cir. 1987); see also Rowley , 458 U.S. at 179-8 1 (int ention to reach all unserved disabled students). IDEA does no t require that a school either maximize a student' s potential or provide the best possible education at public expense. Rowl ey at 203; A.W. , 813 F.2d at 163-64 . The statute only requires that a public school provid e suffic ient specialized services so that the student benefits from hi s education. Rowley , 458 U.S. at 195. IDEA's goal is "more to open the doo r of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside." Id. at 192

. 2 IDEA requires disable d students to be educated with non-disabled students whe never possible. Id. at 202. In determining whether a disable d studen t's education is sufficient under IDEA, courts must consider th e nature of the student's disability. Id. The district court made extensive factual findings based on a h earing and on evidence presented to the state hearing p anel. The school district diagnosed Nicholas as being delayed in reading and math by one year or mor e at the en d of his first year at Hawthorne, and he subsequently repeate d first grad e. In May 1991, when Nicholas was in third grade, his reading 3 skills were at the second grade level, his word attack skills (which enabl e readers to identify words they have not seen before) were at the firs t grade level, and he c ould not write a complete sentence. He had received three Ds

## -7-

and an F in reading that year and mostly Cs in all other subjects. A standar dized test administered in September 1991, after Nicholas lef t Haw thorne, placed his reading skills in the second to ninth percentile

. Nicholas' teachers at Hawthorne primarily used Dolch sight lists (visual

cues and context) to teach him to read, but they also used phonic s (auditory cues) to he lp him recognize words. Hawthorne emphasized use of the Dolch sight lists because Nicholas was more successful with thi s met hod, but he had not learned how to read long words that he did no t recognize by sight. The school decreased the amount of time Nicholas spen t in the learning disabled classroom from 26 percent in his second year in first grade to 13 percent of his time in third grade.

The district court found Nicholas had behavioral difficulties a t Hawt horne. Evaluations of Nicholas done when he was in second grad e charact erized him as poorly motivated, easily frustrated, and feelin g different from his peers. The 1991-92 IEP placed him with non-disable d studen ts for the majority of the day. The court noted the followin g sta tements of district personnel: his third grade teacher had said "hi s attitude is reflected in his [poor] grades;" his "reading grade reflects his effort;" "[h]e needs to stop the excuses & j ust work;" and "[o]ften he appears to be apathetic about school." The court also found that one of Nicholas' teachers told Mrs. Clynes she did not know what else she could do since Nicholas had chosen not to learn, and the director of specia l education told her that some children are non-readers.

The district argues that Nicholas ha d made progress at Hawthorne and the IEPs were sufficient to confer an educational benefit. The court erre d by requiring a program to maximize Nicholas’ ability, by comparing hi s progress to non-disabled students, and by failin g to examine the IEPs from the perspective of th e time when they were written. The comments made by edu cators that were critical of Nicholas’ attitude should not have bee n interpreted to mean that they had given up on ad dressing his problems, but rather as simply reflecting his behavior. Furthermore, the district cour t did n ot properly consider IDEA’s requirement for educating disable d students in the least restrictive environment.

## N icholas received one failing grade in spelling in one quarter and another i n 4 

## reading in a different quarter, but he earned passing g rades in both subjects in the other three quarters.
-8- The Clynes respond by pointing out that Nicholas’ reading skill s were very weak when he left Hawthorne, that the public school system did no t effectively address t heir concerns, and that the district had given up on educating him. Although the state hearing panel ruled in favor of th e dis trict, it had recommended that it incorporate techniques used by th e Churc hill school. The Clynes argue this recommendation necessaril y
su pports the inference that the 1991-92 IEP did not offer a fre e appropriate public education because it was generally different from the Churchill program. T he 1992-93 IEP in turn was inadequate because it did not incorporate the Churchill program as the state hearing panel ha d suggested. The Clynes also contrast the benefits Nicholas received from his education at Churchill with his difficulties at Hawthorne.

After studying the underlying factua l findings of the district court in light of the record and legal standards under IDEA, we conclude that th e school district did o ffer Nicholas a free appropriate public education as required by Congress. Although Nicholas may wel l have benefited more from his education at Chur chill than at Hawthorne, and he did not read as well

as his non-disabled peers or as his parents hoped, IDEA does not require the best possible education or superior results. The statutory goal is to make sure that every affected student receive a publicly funded education that benefits the student. Nicholas' record at Hawthorne indicates that he was ma king progress and that the 1991-92 IEP would have provide d educational benefit t o him. Despite his learning disabilities in reading and m ath, Nicholas earned passing marks in third grade and mostly Cs i n 4 mat hematics. Although Nicholas did not have well developed word attac k skills, his overall r eading skills had improved, and he had been promoted to fourth grade just before his parents removed him from Hawthorne. See Rowley at 203 (grades and advancement from grade to grade " an importan t factor[s] in determining educational benefit"). The 1991-92 IEP called fo r

## The increase in specialize d education for 1991-92 and the district's willingness 5 

## to review the IEP to consider what was learned from Nicholas' experience at summer school belies the Clynes' assertion that the distr ict had given up on educating Nicholas.
-9- Nicholas to spend over one quarter of each school day in the specialized learning disabled classroom in order to address his disabilities, double the a mount of the previous year. See id. at 196 (noting that Congres s "equat ed an 'appropriate education' to the receipt of some specialize d educational services" ). The Hawthorne IEP set goals in word recognition, comp rehension, language skills and math, and the specialized educatio n provided was reasonably calculated to enable him to benefit from his publi c education. 5

The teach ing methods used by Hawthorne were likely to confer a n educational benefit. Although the district court was disturbed by th e level of Nicholas' word attack skills and the emphasis on Dolch sight list s for his reading instruction, it did not focus onthe fact that the 1991-92 IEP set goals for word attack or on the testimon y that phonics was also to be used. The court’s criticism of the educational methods used by th e district was not based on findings of the state educators who reviewed the matter. Courts "lack the specialized knowledge and experience necessary to reso lve persistent and difficult questions of educational policy, " Rowley , 458 U.S. at 208 (internal quotation marks and citation omitted), and th ey must "avoid imposing their view of preferable educationa l metho ds." Id. at 207. No state educational authority criticize d Hawthorne 's method of teaching Nicholas how to read. Both of the stat e educational experts on the hearing panel found t hat Nicholas had benefited from t he instruction provided at Hawthorne. As long as a student i s benefiting from his e ducation, it is up to the educators to determine the appropriate educational methodology. Id. at 208.

Place ment of disabled students in segregated environments i s appropriate "only when the nature or severity of the disability is suc h that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 20

## Contr ary to the dissent's contention that the school district was unwilling t o 6 

## explore any different approaches, there is evidence that the school district would have altered Nicholas' IEP upon his return from the summer at Churchill. The IEP developed in 1992 called for changes in his instruction as a result of his experience at Churchill.
-10- U.S.C. § 1412 (5). A lthough Nicholas' behavior may have been affected by his in teraction with non-disabled peers, none of the state educationa l experts concluded that Nicholas needed a segrega ted environment. The SLRO attributed his poor behavior to his difficulty i n academic classes, not to his association with non-disabled students, and the hearing panel indicate d tha t Nicholas should not be segregated from non-disabled students. Th e 1991-9 2 IEP would have allowed Nicholas to interact with non-disable d students while providing educational benefit to him, and the conclusion of the st ate educational reviewers that a segregated environment was no t appropriate for him is another factor indicating that the Hawthorne progra m complied with IDEA.

Even though the 1991-92 IEP met IDEA's requirements, the schoo l district offered to improve it in the fall of 1991, but the Clynes remove d Nicholas from Hawthorne before the district had an opportunity to review the IEP and attempt t o come to agreement with them. Mrs. Clynes testified that in May 1991 she told the school district that she did not agree with the 1991-92 IEP, would not sign it, and would like it to be reviewed in th e fall of 1991 in light of Nicholas’ summer program at Churchill. The 1991-9 2 IEP itself stated that it was to be reviewed in September 1991, but before that time came the Clynes informed the school district in August tha t Nicholas had been enr olled in Churchill for the year. The abrupt removal of Nicholas from Hawthorne prevented the district from following through

on the request made by the Clynes for a review in the fall and fro m responding to their then current concerns. See Evans v. Dist rict No. 17 , 6 84 1 F.2d 824, 831-32 (8th Cir. 1988) (no failure to provide fre e appropriate public ed ucation where the school district had not been given an opportunity to change the child's educational placement).

## The 1992-93 IEP developed by the school district also met IDEA requirements. 7 

## In August 1992, the school district offered to meet with the Clyne s to resolve the issues relating to Nicholas' educational placement, and they met th at month. Nicholas was reevaluated b y the school district in September, and although he was enrolled a t Churchill and his parents had not yet sought review by the state hearing panel, his IEP was revised in October. The IEP called for double th e amount of individualized special education compared to the 1991-92 IEP, and four times the amount he had received in 1990-91

. The 1992-93 IEP set goals in, among other things, decoding, vocabulary , comprehensi on, and written expression. At the same time, he was placed with non

disabled students in non-academic subjects.
-11- In su m, the Clynes were not entitled to reimbursement from publi c funds for the costs of sending Nicholas to priva te school in the summer of 1991 and the 1991-92 school year. The 1991-92 IEP called for an increase in spe cial educational services in Nicholas' areas of disability whil e advancing IDEA’s mainstreaming purpose by placing him with non-disable d students for a substantial portion of the school day. The IEP outlined his particular needs and responded to them in compliance with IDEA, an d Hawthor ne had agreed to consider possible improvements after Nichola s returned from summer school.

The Clynes removed Nicholas from Haw thorne without the permission of the school district before they sought review under IDEA, thus puttin g themselves at risk that they would not be reimbursed for private schoo l costs. Evans , 841 F. 2d at 832. Parents may not obtain reimbursement for the time a child is placed in private school wit hout the permission of the school district if it is ultimately determined that the proposed IEP met the ID EA requirements. See Burlington Sch. Comm. , 471 U.S. at 374 ; Evans , 841 F.2d at 832; see also 34 C.F.R. § 300.403 (1997) (no requiremen t for stat e to pay private school costs if child has available fre e approp riate public education). Since the 1991-92 IEP met IDE A requir ements, the Clynes were not entitled under federal law t o reimbursement for either the the 1991-92 or 1992-93 school years. 7

## -12- III.

The i ssues raised by the Clynes in their cross-appeal are withou t merit. T hey appeal the denial of their claim for reimbursement fo r interest on loans they took out to pay for Nicholas' private schoo l educ ation at Churchill. We need not decide whether interest is eve r available under IDEA because by enrolling Nicholas at Churchill without th e permission of the school district, the Clynes took the risk that they woul d not receive reimbursement from public funds for their loans, let alone for the interest on them. They also appeal the dis missal of their claims for damages under IDEA, the Americans with Disabilities Act (ADA), 42 U.S.C. §12132; 42 U.S.C. § 1983; and Section 504 of the Rehabilitation Act o f 1973, § 794, for physical illness and emotional distress caused by th e dist rict’s allegedly incompetent and unprofessional failure to provid e Nichola s with an adequate education. The damage claim cannot succee d because the district offered Nicholas a free app ropriate public education, and damages are not available for IDEA violations. Heidemann v. Rother , 84 F.3d 1021, 1033 (8th Cir. 1996). We affirm t he rulings of the district court on these issues.

IV.

For the reasons discussed, the public school district was no t obligated to reimburse the Clynes for Nicholas' education at the Churchill private school, and the Clynes have not shown that the district court erre d in denying them relief on their cross- appeal. We affirm in part, reverse in part, and remand for entry of judgment in fav or of the school district.

Floyd R. Gibson, Circuit Judge, concurring in pa rt and dissenting in part.

I agree that our decision in Heidema nn v. Rother , 84 F.3d 1021, 1033 (8t h Cir. 1996), precludes the Clyneses from recovering damages in thi s action, and I can

## -13-

conceive of no authority that would allow them compensation for interest

on loans they took out to pay for Nicholas's private schooling. Therefore , I concur in Part III of the Court's opinion. No netheless, because I would affirm the district c ourt's judgment in toto , I respectfully dissent from Part II of the opinion.

IDEA makes available federal money t o assist the states in educating disabled children. See Board of Educ. v. Rowley , 458 U.S. 176, 179 (1982)

. To share in these fun ds, participating states must agree to offer a "free appr opriate public education" to all disabled children. 20 U.S.C. § 1412(1) (1994). As a measure to ensure that Congressional goals are met, IDEAdirects local school districts, in consultation with parents , teache rs, and, where appropriate, the child himself, to develop a n "individualized education program" ("IEP") for e ach disabled student. Id. § 1401 (18), (20). An IEP satisfies IDEA's requirement of a free an d appropriate education so long as it "consists of educational instruction spec ially designed to meet the unique needs of the [disabled] child , supported by such services as are necessary to permit the child 't o benefit' from the instruction." Rowley , 458 U.S. at 188-89.

If parents feel that their child's IEP does not afford a fre e ap propriate public education, they may, under certain circumstances , unilaterally place the child in a private school pending administrative an d judicial review of th e IEP. See School Comm. of Burlington v. Department of Educ. , 471 U.S. 359, 369-70 (1985). This is, at least from a financial perspective, a perilous maneuver, for as the majority correctly recognizes , parents are entitled to reimbursement for the costs of enrolling thei r disabled child in a private facility " only if a federal court conclude s both that the public placement violated IDEA, and that the private school placement was proper under the Act." Florence County Sch. Dist. Four v. Cart er , 510 U.S. 7, 15 (1993). Applying this test to the facts of th e instant c ase, I agree with Judge Gunn that the Clyneses are entitled t o compensation for the expenses they incurred in sending Nicholas to th e Churchill School.

## -14- Before pr oceeding to the merits of this appeal, a word must be said about the applicable standard of review. We hav e described federal review of the state administrative process as a "quite narrow" endeavor. Peterse n v. Hastings Pub. Sch. , 31 F.3d 705, 707 (8th Cir. 1994). This is because the federal courts do not possess "the specialized knowledge and experienc e
nece ssary to resolve persistent and difficult questions of educationa l policy," Rowley , 458 U.S. at 208 (quotations omitted), and we mus t therefore give "due weight" to the state proceed ings, id. at 206. In IDEA cases originating fro m a state such as Missouri, which has created a twotiered administrative system, we must give defer ence to the opinion of the state level review of ficer ("SLRO"), who is the person empowered to issue

a final decision for the state. See Thomas v. Cincinnati Bd. of Educ. , 91 8 F.2d 618, 624 (6th Cir. 1990)("[T]he only logical position, under Rowley and general principles of administrative law, is that federal courts are required to defer to the final decision of the state authorities, in this

case that of the SLRO."); Karl v. Board of Educ. , 736 F.2d 873, 877 (2 d Cir

. 1984)("We believe Rowley requires that federal courts defer to th e final decision of the state authorities, and that deference may not b e esch ewed merely because a decision is not unanimous or the reviewin g author ity disagrees with the hearing officer."); cf. Independent Sch

. Dist. No. 283 v. S.D. , 88 F.3d 556, 561 (8th Cir. 1996)(declining t o definitively answer this question); Carlisle Area Sch. v. Scott P. , 62 F.3 d 520, 528-30 (3d Cir. 1995)(deeming it appropriate to defer to opinion of sta te appeals panel, but assuming that the federal courts should accor d somewhat less consideration to an appeals panel ruling that disregards a hearing officer's cre dibility findings which find support in the record), cert. den ied , 116 S. Ct. 1419 (1996). Likewise, though the majority i s
corr ect in stating that we should examine de novo a district court' s ultimate determination of whether an IEP is appropriate, we are bound by

a dist rict court's underlying factual findings unless they are clearl y
erroneous. See Yankton Sch. Dist. v. Schramm , 93 F.3d 1369, 1374 (8th Cir

. 1996).
In light of the detailed factual findings made by the distric t court, and giving "due weight" to the SLRO's determination that the IEP fo r the 1991-1992 school year

## At Nicholas's state due process hearing , his father, Robert Clynes, testified that 8 

## the child had mastered these tasks within two weeks after entering the Churchil l School. App. at 477.
-15- was ina ppropriate, I am unable to conclude that Fort Zumwalt provide d Nicholas a free appropriate public education for that period. The distric t court found that from September of 1989 to May of 1991 Nicholas's wor d attack sk ills had not risen above a first grade level, see Fort Zumwal t Sch. Dist. v. Missouri State Bd. of Educ. , 923 F. Supp. 1216, 1222 (E.D. Mo. 1996), and a standardized test administered in September of 199 1

reve aled that his reading proficiency ranked in the second to nint h percentile, see id. at 1224. At the close of his fifth year in the Fort Zumwalt School District, Nicholas Clynes, at the age of ten, still did not know th e alphabet, could not recite the days of the week, and could no t identify the months of the year. See id. at 1222. It is true, as th e 8 majority points out, that Fort Zumwalt promoted Nicholas to the fourt h grade, but it is notable that in third grade Nicholas did not receive a mark above a "C." Se e id. at 1221. By the end of the year, Nicholas had failed Spelling and had managed to raise a failing grade in Reading for th e third quarter to a "D" for the final quarter. See id.

In the face of these disturbing tren ds, Fort Zumwalt prepared an IEP for 1991-1992 that did not propose any significant changes in Nicholas's educa tional placement. See id. at 1222. The IEP did set goals in wor d attack skills, but Nicholas's resource room instructor, Miss Ruhr , testifi ed that she would continue to emphasize the child's ability t o recognize the meaning of sighted words, a methodthat had failed miserably in the pas t to enhance Nicholas's reading aptitude. See id. At th e meeting to discuss the IEP, the Clyneses express ed concern with Nicholas's inability to read and asked what alternatives we re available to their son. See id. ; App. at 459-60. The district reacted by attributing Nicholas's academic shortcomings to his own poor attitude and refusal to put forth th e requisite effort. See Fort Zumwalt , 923 F. Supp. at 1222. Miss Ruh r stated that she had "tried everything" and did n ot "know what else to do"; in her

## Mrs. Clynes's testimo ny regarding her conversation with Mrs. Moore provides 9 

## revealing insight into the parents' point of view:

At that time, you know, [after Mrs. Moore had made the remark] abo ut the non-reader, I then asked her if she had any knowledge o f Churchill. She said, "Yes, I'm aware of Churchill but, no, I don't per se kn ow the programs, or anything like that," and I had let her know that , "I'm quite concerned that something needs to be done," that I had been to my pedi atrician, that, you know, "He is recommending that Nick need s more help in this area," and she made no offer whatsoever of maybe I need to si t down with you, maybe we need to get together and see i f th ere's a better program for your son, at which time I proceeded to hang up fro m her, call my husband and say, "That's it, no one gives a blan k about our son, it's time for us to take control," and I did.

App. at 435-36. The majority contends that "[n]o state educational authority criticized [th e 10 

## district]'s method of teaching Nicholas how to read," but the SLRO's decision included the following admonition:

The va rious IEPs show a hit and miss approach to dealing with [Nicholas's] failures. There was no focused effort t o follow up on failures and to produce a plan of progress that could be clearly demonst rated . The
-16- opinion, Nicholas had "chosen not to learn." See id. ; App. at 26. Alarme d by this response, Mrs. Clynes later telephoned Pat Moore, Fort Zumwalt's director of special education, to discuss Nichol as's meager progress. See Fort Zumwalt , 923 F. Supp. at 1222. Mrs. Moore informed the worried mothe r that s ome children are simply "non-readers" despite the district's bes t efforts. S ee id. After deciding that the district had given up o n Nicholas, the Clyneses enrolled the child in the Churchill School.

9

I agree w ith the SLRO and the district court that the IEP for 1991- 1992 was not designed to provide "personalized i nstruction with sufficient support services to permit [Nicholas] to benefit educationally from that instruction." Rowley , 458 U.S. at 203. By submitting an IEP substantiall y similar to others that had previously produced so few positive results, an d by exhibiting an unwilling ness to explore any different approaches, Fort 10

## District is not under any obligation to make Nicholas an honor student ,

ho wever it should demonstrate that it has identified the problem areas , applied the appropriate resources and has either produced satisfactor y results or has an explanation why the student's performance is the bes t that can be expected from him.

App. at 34-35 (emphasis added). While this might not be an outright condemnation of Fort Zu mwalt's teaching methods, it comes very close, and it certainly discloses th e SLRO 's assessment that the IEP was clearly deficient. Cf., e.g. , 20 U.S.C. § 1401(20)(F) (instructing that an IEP should contain "appropriate objective criteria and eval uation procedures and schedules for determining, on at least an annual basis , whether instructional objectives are being achieved").
-17- Zumwalt did not extend to Nicholas the free and appropriate

## -18-

education mandated by IDEA. To be sure, Nicholas was steadily advancing from grade to grade in the Fort Zumwalt schools, and the Supreme Court has stressed that "[t]he grading and advancement system . . . constitutes an important factor in d etermining educational benefit," Rowley , 458 U.S. at 203, b ut Nicholas's achievements, particularly in the area of readin g skills, can at best be described as trivial. This cannot be the sort of education Congress had in mind when it enacted IDEA. See Mrs. B. v

. Milford Bd. of Educ. , 103 F.3d 1114, 1120-21 (2dCir. 1997)(reasoning that the Rowley

standard contemplates more than mere trivial advancement); Polk

v. Central Susquehanna Intermediate Unit 16 , 853 F.2d 171, 183 (3d Cir

. 1988)("[W]hen the Sup reme Court said 'some benefit' in Rowley , it did not

mean 'som e' as opposed to 'none.' Rather, 'some' connotes an amount o f benefi t greater than mere trivial advancement."), cert denied , 488 U.S

. 1030 (1989); Hall v. Vance County Bd. of Educ. , 774 F.2d 629, 636 (4th Cir

. 1985)( "Clearly, Congress did not intend that a school system coul d discharge its duty un der [IDEA] by providing a program that produces some minima l academic advancement, no matter how trivial."); cf. Rowley , 45 8 U.S. at 203 n.25 ("We do not hold today that eve ry [disabled] child who is

## The Court does not seem to place dispositive weight upon our decision i n 11 

## Evans v. District No. 17 , 841 F.2d 824 (8th Cir. 19 88), but the Court does suggest that the Clyneses did not comply with the notice requirement we announced in that case

. I disagree. In Evans , we affirmed the district court's denial of re imbursement to parents who had pr ecipitously enrolled their child in a private school, explaining that "[a ] school district should be on n otice of disagreements and given an opportunity to make a voluntary decision to change or alter the educational placement of a [disabled] child." Id. at 831-32. We acknowledged, however, th at parents may independently choose an appropriate private placement "if it is likely that no change would be made whic h would benef

it [the child] (if the school district had made it clear that no change in the placement would occur)." Id. at 832.

Unlike the claimants in Evans , see id. at 831, the Clyneses s pecifically requested
s o me alternative placement for Nicholas. See App. at 460 ("[A]t th[e IEP] meeting I sai d, 'Well, what else can you offer, self-contained?'"); App. at 475-76 ("During th e [IEP] meeting we said

we were very dissatisfied with what was happening with Nick, he still wasn't learning. We a sked them at that point in time what other programs they had, and my wife mentioned self-contained, and they said at that point i n time Nick was not a candidate for self-contained."); App. at 435-36 ("I ha d let [Pat Moore] know that, 'I'm quite concerned that something needs to be done,' that I had been to m y pedi atrician, that, you know, 'He is recommending that Nick needs more help in thi s area,' and she made no offer [of help]."). The position ad opted by Nicholas's educators in answer to these pleas, as disclosed by statements at the IEP meeting and Mrs

. Moore's comments to Mrs. Clynes, evidenced a likelihood that "no change would be made which would benefit [Nicholas]," Evans , 841 F .2d at 832, and there is absolutely
no rea son to believe that the district would have drastically altered its stance had i t received one more opportunity to assess the IEP. Consequently, I do not thin k Evans stands as an impediment to reimbursement in this case.
-19- adv ancing from grade to grade in a regular public school system i s auto matically receiving a 'free appropriate public education.'"). Th e majority , in resolving that Fort Zumwalt did offer Nicholas a fre e appropriate public education, not only does disservice to Congressiona l intent, but also disregards the deference we are required to give to the conclusion reached by the SLRO. 11

## Having determined that Fort Zumwalt did offer Nicholas a free appropriat e 12 

## public e ducation, the majority has apparently found it unnecessary to evaluate th e propriet y of placement at the Churchill School. The Court does, though, mentio n IDE A's mainstreaming requirement. See 20 U.S.C. § 1412(5) (1994). I would hol d th at the preference for mainstreaming is honored where parents send their child to an
ac ademy, such as the Churchill School, which employs a curriculum designed t o prepare the student for a return to a regular classroom environment.
-20- In sum, I think the district court properly decided that the 1991

- 1992 IEP was deficient. I additionally believe the Churchill School was without a doubt an appropriate placement for Nicholas (the facts confirm his improvement at that sc hool), and I would thus hold that the Clyneses 12

are entitled to reimbursement for the summer of 1991 and the 1991-92 schoo l year. Furthermore, because the district did not prepare the 1992-93 IEP until after the Clyneses had contractually committed to send Nicholas to Churchill for that term, I would also approve reimbursement for the 1992-9 3 school y ear. To the extent the majority has decided otherwise, I respectfully dissent.

A true copy:

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.