In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-3044

JOEL HJORTNESS, A MINOR, BY AND THROUGH HIS

PARENTS AND LEGAL GUARDIANS ERIC HJORTNESS

AND GAIL HJORTNESS, ERIC HJORTNESS, AND

GAIL HJORTNESS,

Plaintiffs-Appellants,

v.

NEENAH JOINT SCHOOL DISTRICT,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

Nos. 05 C 648, 05 C 656—William C. Griesbach, Judge.

____________

ARGUED JANUARY 18, 2007—DECIDED AUGUST 20, 2007

____________

Before BAUER, MANION, and ROVNER, Circuit Judges.

BAUER, Circuit Judge. Joel Hjortness and his parents

brought a due process claim against the Neenah Joint

School District (“the school district”) for denying Joel a

“free appropriate public education,” in violation of the

Individuals with Disabilities and Education Act (“IDEA”)

20 U.S.C. § 1415. An administrative law judge (“ALJ”)

found in favor of the Hjortnesses, and the district court

reversed by granting the school district’s motion for

summary judgment. We affirm.
2 No. 06-3044

1 At Shattuck, Joel maintained a grade point average of 3.5 as

a regular education student.

I. Background

Joel has been diagnosed at various times with obsessive

compulsive disorder, Tourette’s disorder, attention deficit/hyperactivity disorder, autistic spectrum disorder,

oppositional defiant disorder, and anxiety disorder.

Despite these disorders, he is exceptionally bright with an

IQ of 140.

Until May 2003, Joel attended public school at Shattuck

Middle School in the Neenah Joint School District,1

 where

he and his parents resided. In May 2003, Joel’s parents

withdrew him from Shattuck because they believed that

the school district was not adequately addressing his

behavioral needs. His parents enrolled him in private

school: first, at the Kennan Academy in Menasha, Wisconsin until January 2004, and thereafter as a residential

student at the Sonia Shankman Orthogenic School

(“SSOS”) in Chicago, Illinois.

In November 2003, the school district began its process of reevaluating Joel, as required by law. The school

district planned to gather data and then to meet with

Joel’s parents to develop an individualized education plan

(“IEP”) for Joel. On March 12, 2004, a school psychologist,

an occupational therapist, and an autism resource teacher

from the school district observed Joel at SSOS and interviewed SSOS staff who had worked with him. Based on

this observation and the results of other tests, the team

concluded that Joel met the special education criteria

for autism, other health impairment, and emotional

behavioral disability.

The school district next developed an IEP for Joel. On

April 22, 2004, the school district’s special education
No. 06-3044 3

director, a regular education teacher from Neenah High

School and Shattuck Middle School, a special education

teacher from each of these schools, an other health impairment consultant, and the three district staff members

who had visited SSOS, Joel’s mother, and her attorney met

to develop the IEP. At the IEP meeting, the team discussed Joel’s strengths and weaknesses. The team also

discussed general goals for Joel’s education, which included giving Joel instruction in a small group setting.

They identified one specific goal: that Joel would raise

his hand at least 50% of the time when appropriate. No

other specific goals or short-term objectives were identified at the meeting.

After the IEP meeting, school district staff prepared

Joel’s IEP for May 17, 2004 through May 16, 2005. The

IEP specified four goals: (1) Joel will demonstrate appropriate hand raising procedures 50% of the time in class;

(2) Joel will increase his ability to follow directions given

by authority figures by 50%, as measured by a teacher

monitoring system; (3) Joel will increase his ability to

interpret a situation and respond appropriately in 50% of

situations, as measured by a monitoring system; and

(4) Joel will increase his ability to respond appropriately

when in competitive situations 50% of the time, as measured by a staff monitoring system. Of the four goals, only

the first was explicitly discussed at the IEP meeting. The

remaining goals were identical to the goals in Joel’s

previous IEP, except that the percentages specified were

lower than the percentages identified in the preceding

IEP, and the short term objectives in support of each goal

varied from the short term objectives in the preceding IEP.

On June 18, 2004, Joel’s parents requested a due process hearing to seek reimbursement for placing Joel at

SSOS. The ALJ found that the school district complied

with the substantive requirements of the IDEA by providing Joel with an IEP that was reasonably calculated to
4 No. 06-3044

provide him with some meaningful educational benefit.

The ALJ also found that the school district had committed

a procedural violation of the IDEA because Joel’s IEP was

not substantially developed and the school district had

decided to place Joel in its school before the IEP meeting,

thereby denying him a free appropriate public education. As a result, the ALJ ordered the school district to

reimburse the Hjortnesses $26,788.32 for the cost of Joel’s

private school placement. The school district and the

Hjortnesses both appealed this decision to the district

court. The school district moved for summary judgment,

which the district court granted. The Hjortnesses filed

this timely appeal.

II. Discussion

Whether a school district has offered a free appropriate

public education to a disabled student is a mixed question

of law and fact. Heather S. v. State of Wisconsin, 125 F.3d

1045, 1053 (7th Cir. 1997). We review the administrative record and the district court’s findings of fact deferentially, and we review questions of law de novo. Bd. of Educ.

v. Ross, 486 F.3d 267, 270 (7th Cir. 2007).

The IDEA requires that the school district, as a recipient

of federal education funds, provide children with disabilities a free appropriate public education in the least

restrictive environment. Id. at 273. Specifically, the IDEA

provides:

To the maximum extent appropriate, children with

disabilities, including children in public or private

institutions or other care facilities, are educated with

children who are not disabled, and special classes,

separate schooling, or other removal of children with

disabilities from the regular educational environment

occurs only when the nature or severity of the disabil-
No. 06-3044 5

ity of a child is such that education in regular classes

with the use of supplementary aids and services

cannot be achieved satisfactorily.

20 U.S.C. § 1412(a)(5)(A). The IDEA requires that the

state determine what is uniquely “appropriate” for each

child’s education by preparing an IEP developed through

the joint participation of the local education agency, the

teacher, and the parents. An IEP is defined as “a written

statement for each child with a disability that is developed, reviewed, and revised in accordance with section

1414(d) of this title.” 20 U.S.C. § 1401(14). The statute

assures the parents an active and meaningful role in the

development or modification of their child’s IEP. Ross, 486

F.3d at 274. The statute imposes both a substantive

obligation and a procedural obligation on the state. Id.

at 273-74.

A. Substantive Compliance

The Hjortnesses first assert that Joel’s IEP was substantively inadequate because it failed to fully identify Joel’s

disabilities and his resulting needs, his present levels of

educational performance, and his annual goals and short

term objectives. We disagree.

To be substantively appropriate, the IEP must be

formulated so that Joel would receive the “basic floor of

opportunity [, consisting of] access to specialized instruction and related services which are individually designed

to provide educational benefit to [him].” Bd. of Educ. v.

Rowley, 458 U.S. 176, 201, 102 S. Ct. 3034, 73 L. Ed. 2d

690 (1982). To accomplish this, the IDEA requires, among

other things, that the IEP include “a statement of the

child’s present levels of educational performance, including—(1) how the child’s disability affects the child’s

involvement and progress in the general curriculum. . . .”

20 U.S.C. § 1414(d)(1)(A)(I).
6 No. 06-3044

As the ALJ indicated, considering that medical professionals have demonstrated difficulty in pinpointing

Joel’s disorders, it is unreasonable to expect the school

district to do better in determining Joel’s predominant or

existing medical disorders. The school district properly

considered the various medical diagnoses and educational

assessments in determining that Joel met the criteria

for autism and other health impairments.

Joel’s “present levels of educational performance” did not

reflect his current performance because current data was

unavailable. Joel had not been attending school at the

school district for almost a year, and SSOS was still in the

process of observing Joel to gain insight on his behaviors.

The school district gathered all the current information

they could—by visiting SSOS, observing Joel, and meeting with his current teachers—and incorporated that

data into his IEP.

Further, the Hjortnesses failed to present any evidence

that Joel would not benefit educationally from the goals in

his IEP. The goals and short terms objectives were targeted to develop his social skills and would have provided

Joel with some meaningful educational benefit. It was

appropriate for the IEP to contain substantially similar

goals and objectives as were contained in the preceding

IEP.

B. Procedural Compliance

The Hjortnesses next assert that Joel’s IEP was procedurally inadequate because (1) the IEP was written

without Joel’s parents’ participation in the development of

its goals and objectives, (2) the IEP was written without

an SSOS representative at the IEP meeting, and (3) the

school district made its placement decision before the IEP

was written. We disagree.
No. 06-3044 7

Procedural flaws do not require a finding of a denial of

a free appropriate public education. However, procedural

inadequacies that result in the loss of educational opportunity result in the denial of a free appropriate public

education. Ross, 486 F.3d at 276.

Considerable time was spent in multiple IEP conferences

at which Joel’s parents and their advocate participated. At

several times during these conferences, the team attempted to set specific goals and objectives, but the

Hjortnesses insisted that “the issue on the table [was

whether the school district would] pay for [Joel] to be

at Sonia Shankman where he needs to be.” The school

district arguably should have held a second IEP meeting

to review the goals and objectives that were not discussed

at the meeting. However, this procedural violation does

not rise to the level of a denial of a free appropriate public

education. The record does not support a finding that

Joel’s parents’ rights were in any meaningful way infringed.

The IDEA did not require the school district to have

an SSOS representative at the IEP meeting. A private

school representative is only required to attend the

meeting if the school district placed the child in the private

school, see 34 C.F.R. § 300.349, which was not the case

here. Even though they were not required to do so, the

school district made quite an effort to ensure input from

SSOS. The school district sent a team to SSOS to visit and

interview Joel and his teachers. The school district also

offered Joel’s parents alternative meeting dates in an

effort to allow them to invite SSOS to attend or participate

by telephone. Even the resulting IEP included data from

past evaluations, current observations, and teacher data

that was supplied by SSOS. The school district also

repeatedly offered to reconvene the meeting once more

data from SSOS was available.
8 No. 06-3044

Finally, we turn to the appellants’ main challenge—that

the school district denied Joel a free appropriate public

education because it predetermined Joel’s placement. The

ALJ found that the school district made its decision to

place Joel in public school before the IEP was written.

However, the IDEA requires that the school district

educate Joel with his nondisabled peers to the “greatest

extent appropriate.” 20 U.S.C. § 1412(a)(5)(A). Recognizing

that we owe great deference to the ALJ’s factual findings,

we find that the IDEA actually required that the

school district assume public placement for Joel. Thus,

the school district did not need to consider private placement once it determined that public placement was

appropriate.

We find that the district court did not err in finding that

the IEP was reasonably calculated to provide Joel with

some meaningful education benefit and that the school

district did not deny Joel a free appropriate public education.

III. Conclusion

For the foregoing reasons, we AFFIRM the judgment of

the district court.

ROVNER, Circuit Judge, dissenting. With respect,

I believe that two procedural flaws in the IEP process

compel reversal of the judgment. The ALJ found that

before school officials met with Mrs. Hjortness to begin

discussing the 2004-05 IEP, the school district already
No. 06-3044 9

had “made up its mind to place the Student in a small

group setting in the District schools under whatever IEP

was formulated.” R. 1 at 24; id. at 16 ¶ 32; see also id. at

23. The ALJ also found that most of the goals and shortterm objectives incorporated into the IEP were determined after the April 22, 2004 meeting attended by Joel’s

mother and therefore were arrived at without the parents’

input. Id. at 16 ¶¶ 33-35; id. at 23. Neither of these factual

findings was clearly erroneous, and together they amply

support the ALJ’s conclusion that Joel’s parents were

deprived of meaningful participation in the IEP process

and that Joel was deprived of a free appropriate public

education.

The IDEA’s presumption in favor of educating a disabled student with his nondisabled peers (see ante at 8,

citing 20 U.S.C. § 1412(a)(5)(A)) does not permit a school

district to circumvent the procedures that Congress has

mandated by predetermining that a disabled student

should be placed in one of its own schools. A placement

decision is to be based on the IEP. 34 C.F.R.

§ 300.116(b)(2) (formerly § 300.552). The IEP is the

“primary vehicle” for implementing the underlying goals

of the statute. Honig v. Doe, 484 U.S. 305, 311, 108 S. Ct.

592, 597 (1988). It is the IEP that assesses the student’s

current educational performance, articulates a set of

annual goals and short-term objectives in furtherance of

those goals, and identifies the special education and other

services necessary to help the student achieve those goals.

20 U.S.C. § 1414(d)(1)(A); Honig, 484 U.S. at 311, 108 S.

Ct. at 597-98. A placement decision that is made before the

IEP is drafted renders what Congress meant to be “the

centerpiece of the statute’s education delivery system for

disabled children,” id. at 311, 108 S. Ct. at 598, a meaningless formality. See, e.g., Deal v. Hamilton County Bd. of

Educ., 392 F.3d 840, 859 (6th Cir. 2004); Spielberg v.
10 No. 06-3044

Henrico County Public Schools, 853 F.2d 256, 259 (4th Cir.

1988).

Likewise, an IEP that is drafted largely in the absence

of a student’s parents is not the product of the interactive

process that Congress required. See, e.g., W.G. v. Bd. of

Trustees of Target Range School Dist. No. 23, 960 F.2d

1479, 1485 (9th Cir. 1992). The fact that Joel’s parents

were involved in the process prior to the development of

the IEP (see ante at 7) is beside the point. The fact is, they

were not actually involved in preparing the IEP, nor was

the full IEP team reconvened for the parents’ input once

school officials had completed the plan. It is no answer to

say that Joel’s parents did not object to the ex parte

drafting of the IEP once it was presented to them. See R.

33 at 14. That was not their burden. See W.G., 960 F.3d

at 1485. As the ALJ rightly observed, “it was the obligation of the District to recognize the procedural flaw[ ] and

offer the Parents the opportunity to participate meaningfully in the development of the annual goals and

objectives, and thereafter to discuss placement under the

IEP as then appropriately developed.” R. 1 at 23.

Because the procedure followed by the school district

in this case was inconsistent with the core goals and

requirements of the IDEA, I would reverse the district

court’s judgment and sustain the ALJ’s determination

that Joel’s parents are entitled to reimbursement for

the tuition they paid for Joel’s private education in the

2004-05 school year.

I respectfully dissent.
No. 06-3044 11

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-20-07