The Honorable Rodney S. Webb, United States Chief District Judge for the

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District of North Dakota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-4214

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E.S., a disabled minor; Jeanne Stein, *

parent and legal guardian, *

*

Appellants, *

* Appeal from the United States District

v. * Court for the District of Minnesota.

*

Independent School District, No. 196, *

Rosemount-Apple Valley-Eagan; Bruce *

Johnson, in his official capacity as the *

Commissioner of the Minnesota *

Department of Children, Families and *

Learning; State Board of Education for *

the State of Minnesota; State Board of *

Teaching for the State of Minnesota, *

*

Appellees. *

*

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Submitted: October 22, 1997

Filed: January 30, 1998

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Before BEAM, FLOYD R. GIBSON, Circuit Judges, and WEBB , United States Chief 1

District Judge.

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In June 1997, Congress amended the IDEA. However, since the events relevant 2

to this litigation occurred prior to the Amendments' effective date, we address only the

pre-1997 IDEA. See Individuals with Disabilities Education Act Amendments of 1997,

Pub. L. No. 105-17 § 201, 111 Stat. 156 (effective date).

The Honorable Michael J. Davis, United States District Judge for the District 3

of Minnesota.

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BEAM, Circuit Judge.

E.S., a handicapped child within the meaning of the Individuals with Disabilities

Education Act (IDEA), 20 U.S.C. § 1400-1491, and her mother, Jeanne Stein, appeal 2

the district court's dismissal of their IDEA claims against Independent School District 3

Number 196 and various state defendants. Because we find that E.S. was receiving a

free appropriate public education as required by the IDEA, we affirm.

I. BACKGROUND

E.S. suffers from dyslexia, a handicap entitling her to special education services.

See 20 U.S.C. §§ 1401(a)(1)(A)(i), 1401(a)(15). Independent School District Number

196 (the District) began providing E.S. with special education services in 1992. At that

time, as E.S. was entering the fourth grade, testing indicated that E.S.'s broad reading

skills were at a 3.0 grade-level equivalent, her reading comprehension was at a 3.2

grade level, her broad written language was at a 2.7 grade level and her writing skills

were at a 2.1 grade level. Three years later, as she prepared to enter the seventh grade,

E.S. was reassessed. The reassessment tests indicated that E.S.'s broad reading skills

were now at a 3.8 grade equivalent, her reading comprehension had improved to a 5.1

grade equivalent, her broad written language was at a 3.1 grade level and her
The Orton-Gillingham instructional technique is described as "a multi-sensory 4

approach used to instruct students with learning disabilities. As such, it is one of

several available methods used to provide instruction." 

The IDEA requires school districts to formulate IEPs for each of its disabled

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students. Those plans are detailed written statements arrived at by a multi-disciplinary

team summarizing the child's abilities, outlining the goals for the child's education and

specifying the services the child will receive. See 20 U.S.C. § 1401(a)(20)

While Ms. Stein originally raised numerous objections to the IEP proposed for 6

1995-96, her complaints have now been narrowed to these two requests. 

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writing skills were 3.8 grade equivalent. After this assessment, Ms. Stein and the

District agreed that E.S. would be provided extended services during the summer of

1995. That summer E.S. received one-to-one tutoring using the Orton-Gillingham

instructional technique. Ms. Stein was apparently pleased with the progress she

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perceived from those tutoring sessions, because she requested that E.S.'s individualized

education plan (IEP) specify that she receive one-to-one instruction using the Orton- 5

Gillingham method during the 1995-96 school year. The District declined to mandate 6

only the Orton-Gillingham method in the IEP, arguing that E.S.'s teachers should be

able to select from a variety of teaching methodologies, including Orton-Gillingham.

Furthermore, the District did not agree that E.S. needed exclusively one-to-one tutoring,

and proposed placing her in "pull-out" classes of 3-5 students who were at similar

educational levels. When the District refused to modify E.S.'s IEP as requested, Ms.

Stein requested a due process hearing. The level I (local review) Hearing Officer

received evidence for two days. The hearing officer, relying on the testimony of E.S.'s

tutor, found that E.S. could learn either with one-to-one instruction or in a small group

of three to five students, as long as those students were at E.S.'s achivement level. The

hearing officer therefore refused to order the school to provide one-to-one instruction

using Orton-Gillingham. Ms. Stein appealed to a level II (the
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state educational agency) Hearing Review Officer. The Hearing Review Officer

concluded that "[t]his record does not indicate any substantive violations of [the]

IDEA" and denied Ms. Stein's requests. 

Their administrative remedies exhausted, E.S. and Ms. Stein filed a complaint

in federal district court. Along with the District, they named the State Board of

Education, the State Board of Teaching, and the Commissioner of the Minnesota

Department of Children, Families and Learning (collectively "the State Defendants")

as defendants who had violated the IDEA by refusing to provide one-to-one instruction

using the Orton-Gillingham method and by refusing to develop an IEP including those

services. The complaint also alleged violations of the Americans with Disabilities Act,

42 U.S.C. § 12132, the Rehabilitation Act, 29 U.S.C. § 504, and the Minnesota Human

Rights Act, Minn. Stat. § 363. The parties agreed to sever the IDEA claims from the

rest of the complaint and after a severance order was entered, both sides moved for

judgment on the record. The district court held that E.S. had failed to establish that

one-to-one instruction using Orton-Gillingham was necessary for her to receive

educational benefit. Accordingly, it granted the defendants' motions for judgment on

the record. E.S. and Ms. Stein appeal.
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II. DISCUSSION

A. Jurisdiction

We first address the District and the State Defendants' joint motion to dismiss

E.S.'s appeal for lack of jurisdiction. They argue that since E.S.'s ADA and other

claims are still pending, the order disposing of the IDEA claim is not a final, appealable

order. 

When a single claim is severed from a lawsuit, it proceeds as a discrete,

independent action and the trial court may render final, appealable judgment on the

severed claim, notwithstanding the continued existence of unresolved claims in the

remaining action. See Fed. R. Civ. P. 21; United States v. O'Neil, 709 F.2d 361, 368

(5th Cir. 1983); see also The Toro Co. v. Alsop, 565 F.2d 998, 1000 (8th Cir. 1977)

(district court has power under Rule 21 to sever one count of complaint from others).

The district court's order concerns only the severed IDEA claim and was final,

notwithstanding the lack of a final order on the other claims. Accordingly, we deny the

motion to dismiss for lack of appellate jurisdiction.

B. IDEA Claim

The IDEA provides federal funds to assist states in educating disabled children.

In order to receive this money, states must provide a "free appropriate public
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education" to all of its disabled students by formulating IEPs tailored to their unique

needs. 20 U.S.C. § 1412. The Supreme Court has determined that a school meets its
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obligation if the disabled student's IEP is "reasonably calculated to enable the child to

receive educational benefits." Hendirck Hudson Dist. Bd. of Ed. v. Rowley, 458 U.S.

176, 207 (1982).

Because judges are not trained educators, judicial review under the IDEA is

limited. When reviewing outcomes reached through the administrative appeals

procedures established by 20 U.S.C. §§ 1415 (b) and (c), the district court must give

"due weight" to the results of those proceedings, resisting any impulse to "substitute

[its] own notions of sound educational policy for those of the school authorities."

Rowley, 458 U.S. at 206. At the appellate level, the question of an IEP's adequacy is

a mixed question of law and fact, reviewed de novo. See Fort Zumwalt Sch. Dist. v.

Clymes, 119 F.3d 607, 611 (8th Cir. 1997). In the absence of a mistake of law, the

district court's answer to this mixed fact/law question is reviewed for clear error. See

Yankton Sch. Dist. v. Schramm, 93 F.3d 1369, 1374 (8th Cir. 1996). At the

administrative level, the District clearly had the burden of proving that it had complied

with the IDEA. See Clyde K. v. Puyallup Sch. Dist. No.3, 35 F.3d 1396, 1398-99 (9th

Cir. 1994). On appeal, the party challenging the outcome of state administrative

hearings has the burden of proof. See id.; Board of Educ. of Community Consolidated

Sch. Dist. No. 21 v. Illinois State Bd. of Educ., 938 F.2d 712, 716 (7th Cir. 1991).

In this case, contrary to counsel's representation at oral argument, the hearing

review officer made findings of fact that E.S. was receiving a free appropriate public

education without one-to-one tutoring under the Orton-Gillingham method. E.S. and

Ms. Stein dispute this conclusion, pointing out that despite three years of special
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education by the District, E.S. still lagged behind grade-level achievement in many

critical skills. However, the IDEA does not require the District to provide E.S. the best

possible education or to achieve outstanding results. See Fort Zumwalt, 119 F.3d at

613. Requiring the District to change methodologies based on Ms. Steins's preferences

"would be creating the potential that a school district could be required to provide more

than one method . . . for different students whose parents had differing preferences."

Petersen v. Hastings Pub. Sch., 31 F.3d 705, 708 (8th Cir. 1994). As long as a student

is benefitting from her education, it is up to the educators to determine the appropriate

methodology. See Rowley, 458 U.S. at 208. Although E.S. did not read as well as her

non-disabled peers, her record indicates that she was making progress and that the

1995-96 proposed IEP would have provided educational benefit to her. We therefore

find that neither the District nor the State Defendants violated the IDEA, and that the

district court was correct in granting judgment on the record to all defendants.

Finally, E.S. and Ms. Stein appeal the district court's denial of their motion to

supplement the administrative record. Although the IDEA permits a court reviewing

the administrative process to admit additional evidence, "a party seeking to introduce

additional evidence at the district court level must provide some solid justification for

doing so." Independent Sch. Dist. No. 283 v. S.D., 88 F.3d 556, 560 (8th Cir. 1996)

(quotation ommitted). The district court found that E.S. and Ms. Stein did not provide

such "solid justification" and we can find no error in that ruling. 

We have carefully considered the remainder of the appellants' arguments, and

find them to be meritless.
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III. CONCLUSION

For the foregoing reasons, the decision of the district court is affirmed. 

A true copy.

Attest:

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