20 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187

Because plaintiffs have failed to show that the IEP is

inappropriate, they are not entitled to reimbursement for thecosts of B.J.’s DTT program. See School Comm. of

Burlington v. Department of Educ., 471 U.S. 359, 374 (1985).Furthermore, because B.J. was offered a FAPE, the districtcourt was correct in dismissing the remaining claims.

III.

For the foregoing reasons, the judgment of the district court

is affirmed.

1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

EDWIN BURILOVICH; LINDABURILOVICH, as next friends

on behalf of their son, BradleyBurilovich,

Plaintiffs-Appellants,

v.

BOARD OF EDUCATION OF THE

LINCOLN CONSOLIDATEDSCHOOLS; RON GREINER,

individually,

Defendants-Appellees.

Appeal from the United St

for the Eastern District of M

No. 97-72191—Bernard A. Fri

Argued: Novembe

Decided and Filed: A

Before: KEITH, NORRIS, and 
2 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187

_________________

COUNSEL

ARGUED: Richard J. Landau, DYKEMA GOSSETT, AnnArbor, Michigan, for Appellants. Michael A. Eschelbach,THRUN, MAATSCH & NORDBERG, Lansing, Michigan,for Appellees. ON BRIEF: Richard J. Landau, DYKEMA

GOSSETT, Ann Arbor, Michigan, for Appellants. MichaelA. Eschelbach, Timothy R. Winship, THRUN, MAATSCH& NORDBERG, Lansing, Michigan, for Appellees.

_________________

OPINION

_________________

ALAN E. NORRIS, Circuit Judge. Plaintiffs Edwin

Burilovich and Dr. Linda Burilovich (“plaintiffs”), acting onbehalf of their autistic son Bradley (“B.J.”), sued the Board ofEducation of the Lincoln Consolidated Schools and its specialeducation director (“defendants”) under the Individuals withDisabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et.seq. Plaintiffs challenge the district court’s grant of summaryjudgment for defendants, maintaining that a proposal to placeB.J. in a mainstream kindergarten violated procedural andsubstantive provisions of the IDEA. For the followingreasons, we affirm the judgment of the district court.

I.

B.J. was born on November 15, 1990. At an early age, his

parents noticed that his language skills were significantlydelayed. When he was three, plaintiffs sought assistance fromtheir local school district, Lincoln Consolidated Schools. B.J.was evaluated by a Multidisciplinary Evaluation Team(“MET”) at Willow Run Community Schools, which wasproviding Preprimary Impaired (“PPI”) services for Lincoln.The MET generated an Individualized Education Program(“IEP”), providing B.J. with nonclassroom PPI services, alongwith speech and language therapy. 

No. 98-2187 Burilovich, et al. vfor B.J. Dr. Burilovich felt that wtended to be less social, to engaincrease his self-stimulation. She fschool, and that he would be tmainstream class. Dr. Meinhold tebenefit from mainstream kindergarparaprofessional. Dr. Holmes also be better than kindergarten for B.J.benefit from being with peers ucommunication skills.

The district’s witnesses, on the 

with DTT. Dr. Mesibov indicateemphasized B.J.’s deficits, not his sB.J. would only make his social Greiner stated that the staff never because they thought it would be concerns expressed over the propothe school program, did not environment, peer reinforcementmembers also had problems with Dbe a package deal, without indiviDr. Meinhold acknowledged thkindergarten, just not in his area o

The district court reviewed the 

that the school’s proposal was the needs, holding that the SHO’s findby the evidence. Given the differias to the best program for B.J. and record for the opinions, we empha“substitute their own notions of sothose of the school authorities whi

458 U.S. at 206. Giving due weigwe conclude that the IEP was dachieve his maximum potential. Cf

46 (finding IEP substantively circumstances).
18 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187

will be defective if it fails specifically to address regression,nor do plaintiffs posit any argument that would persuade thiscourt that we should so hold.

Plaintiffs further maintain that the district court improperly

resolved a material question of fact by deferring to the SHO’sdecision perceived by the court as discrediting plaintiffs’expert, Dr. Meinhold. Review of the SHO’s opinion revealsthat, while the SHO said that he discounted (not“discredited”) Dr. Meinhold’s testimony, the SHO actuallydid consider her proposed DTT package when assessingwhether B.J.’s unique needs were met. There is no issue ofmaterial fact because the SHO’s findings did take intoaccount Dr. Meinhold’s views. After independent review ofthe record, and giving due weight to the SHO’s decision, weagree with the SHO’s conclusion.

7. Whether the IEP was Designed to Allow B.J. to Attain

his Maximum Potential

Plaintiffs maintain that there was conflicting testimony

addressing the question of whether the IEP would allow B.J.to attain his “maximum potential.” Plaintiffs suggest that theonly expert opinion based upon a professional, individualassessment of B.J. showed that he needs an intensive programof individualized, one-to-one instruction. Plaintiffs note thatdefendants’ expert, Dr. Gary Mesibov, had never met B.J.,while plaintiffs’ experts, Drs. Meinhold and Holmes, had metand observed B.J. Plaintiffs also indicate that other defensewitnesses included school district staff, some of whom hadnever met B.J. or who had only met him once. Plaintiffsreiterate their assertion that the IEP was based on theavailability of resources and experience of school personnel,not B.J.’s needs. Plaintiffs also cite several cases approvingof DTT. Finally, plaintiffs maintain that the IDEA’s goal thata student be in the least restrictive environment did not weighin favor of the district’s IEP because B.J. was not ready forthe fully mainstreamed class suggested by the IEP.

Independent review of the record confirms that the parties

had widely differing views of the best method of education

No. 98-2187 Burilovich, et al. v

On February 24, 1994, B.J. was e

at the University of Michigan Hospitals. Suzanne Boyer, B.J.’s tlast part of the appointment. Dautistic; Dr. Burilovich later hanTsai’s evaluation to Ms. Boyer. placed in B.J.’s school file.

Plaintiffs began researching e

treating autism. They learned of aDr. Ivar Lovaas, called discrete triemphasizes heavy parental involvand treatment in the home and elsrather than in professional settingsbased DTT program for B.J.

In June 1994, Dr. Burilovich 

Superintendent, Dr. Yomtoob, expthe downsizing of the Willow Run iB.J.’s being given only three houThat letter also indicated that B.J. 

In September 1994, Lincoln no

was transferring B.J. from the WLincoln PPI program. On Octoconsulted with Dr. Patricia Meinhoat Western Michigan University, wan appropriate candidate for DTT request assistance from their sCommittee meeting (“IEPC”) was resulting IEP placed B.J. in the dhours a day, four days a week, witof speech and language therapy. Tpart of B.J.’s school time be used fnot include DTT in the IEP. B.J.offered to, and did, provide DTT before the school day began.

B.J.’s home program contin

Thanksgiving he was receiving at DTT. The parents decided t
4 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187

participation to two days a week following Christmasvacation; his time spent on DTT increased to 20-25 hours aweek. According to plaintiffs, in the first half of 1995, B.J.made progress with his language and imitative skills, but wasnot involved in classroom activities. By the last half of 1995,B.J. was averaging 25-30 hours of home-based DTT. OnNovember 28, 1995, Mr. Burilovich visited B.J.’s classroomand made a videotape. The parents maintain that the behavioron the videotape confirmed Dr. Burilovich’s concerns thatB.J.’s behavior in school was more regressed than at home.

On July 1, 1995, defendant Ronald Greiner became the

Director of Special Education for the Lincoln ConsolidatedSchools. He began working with the Burilovich family in thefall of 1995 and an IEPC for B.J. was held on December 1,1995. On December 7, 1995, Mr. Greiner sent a letter toplaintiffs memorializing conversations he had with them andsetting out the district’s perspective on an appropriateprogram for B.J. The letter also indicated that the parents hadmentioned they were having some medical evaluationscompleted addressing autism, and asked for access to thatinformation. In response, plaintiffs requested an independenteducational evaluation (“IEE”) by Dr. Meinhold. Plaintiffslater provided Mr. Greiner with a copy of Dr. Tsai’s March1994 evaluation. In January 1996, Mr. Greiner initiated anevaluation of B.J. for autism. The evaluation included somehome observation by the school psychologist, school socialworker, and Mr. Greiner.

Another IEPC was scheduled for March 18, 1996. Before

that meeting, Dr. Meinhold submitted a report that includeda formal written program proposal for B.J. At the meeting,Mr. Greiner proposed a program predominantly consisting ofDTT, accepting the goals and objectives developed by Dr.Meinhold, and providing for staff training by Dr. Meinhold.According to Mr. Greiner, he proposed the plan involvingDTT because he wanted to avoid conflict and a due processhearing. The staff, however, did not support the proposal.While most of the meeting was taped, the proposal was notwritten in a formal IEP. The parties disagree over the reason

No. 98-2187 Burilovich, et al. v

5Although plaintiffs characterized thi

we view it as an alleged substantive violatthe IEP be designed to meet the child’s udefinition of “special education” in 20 U197 F.3d at 802.

any other program.5 To support point to the testimony of Ampsychologist, who indicated that thtrained sufficiently to provide B.Jtestimony does not support plainbecause the record indicates that shDTT even when she assumed that ptrained.

The district court and the SHO 

defendants’ program took B.Jconsideration. As the district courprogram set goals for B.J. and schedule to address each of thincluding both group instruction acontrast, the court noted that it did proposed “standard” 40 hours of Dto B.J.’s needs.” The court later proposal is the only one which toogoals and abilities, and developaccommodate him.” After reviewdue weight to the SHO’s opinion, court that the IEP did take into accSee Renner, 185 F.3d at 644 (deterchild’s unique needs in case involvto the present case).

Plaintiffs also suggest that the I

unique needs because it did not meof DTT or his potential for regresswhich a district court ruled against to a risk of regression. See DelawUnit No. 25 v. Martin K, 831 F. S1993). We do not read the case as 
16 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187

development for chronological age, as measured by morethan 1 developmental scale, which cannot be resolved bymedical or nutritional intervention. This definition shallnot preclude identification of a child through existingcriteria within R 340.1703 to R 340.1710 or R 340.1713to R 340.1715. 

Id.

The only case cited by plaintiffs to suggest a time limitation

is readily distinguishable. In Metropolitan Nashville &

Davidson County School System v. Guest, 900 F. Supp. 905(M.D. Tenn. 1995), the court held that a school system hadviolated its obligations under the IDEA to identify, locate, andevaluate children needing special education by delaying twomonths in identifying a disabled child and an additional fourmonths in properly evaluating him. The court emphasizedthat while the Sixth Circuit has recognized that technicaldefects do not result in a violation of the IDEA if there is nosubstantive deprivation, “[s]ix months without appropriateservices, however, is one-sixth of a three-year-old’s life.” Id.at 908. That case involved the initial identification andevaluation of the child, not the reevaluation at issue with B.J.Plaintiffs maintain that the delay in this case was not just atechnical defect, given the more intensive programmingavailable for autistic students. Yet plaintiffs do not suggesthow the delay could have caused a substantive problem withB.J.’s IEP, since by the time the March and May IEPCsoccurred, B.J. had been certified as autistic. For thesereasons, plaintiffs have failed to explain the relevance of thefailure to recertify B.J. sooner, even if a time limitation wasapplicable.

6. B.J.’s Unique NeedsPlaintiffs suggest that the IEP failed to take B.J.’s unique

needs into consideration, asserting that the district proposedthe IEP because its personnel had insufficient experience for

No. 98-2187 Burilovich, et al. vwhy there was no written docuparticipants left with the understawould begin training the staff the session was later canceled, accordiof recent snow days. 

After the meeting, Mr. Greiner re

think DTT was a good program privately with his staff on April 1DTT and develop a new proposaland sent to the parents, with goals by Dr. Meinhold, but without any Dplaced B.J. in a mainstream kindeone support from a trained parapro

An IEPC was scheduled for M

Meinhold was not invited. At the serious concerns about placing kindergarten program without any the proposal differed from the According to defendants, Mr. Grrationale for the proposal, but the pin hearing details. Plaintiffs signdisagreement, on May 23, 1996.

Pursuant to the IDEA, the pare

due process hearing before a local The LHO decided in favor of B.J.March 1996 oral proposal was implemented, and directing the parents for the expenses of proviparties appealed aspects of the dereview officer (“SHO”) reversed thhad been created in March and the SHO determined that the May IEprocedural or substantive violatiappropriate public education (“FAPB.J.’s potential, in accordance with SHO also denied reimbursement t
6 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187

Plaintiffs filed a complaint in district court appealing the

SHO’s determination and alleging violations of the IDEA, theRehabilitation Act of 1973, the Americans with DisabilitiesAct, 42 U.S.C. § 1983, and the Michigan Handicappers’ CivilRights Act. Defendants filed a motion for summary judgmentaddressing all counts of the complaint; plaintiffs filed amotion for partial summary judgment addressing their IDEAclaim. The district court granted defendants’ motion anddenied plaintiffs’ motions for partial summary judgment andfor reconsideration. The court determined that the parentshad the burden of proof. Looking at specific issues raised, thecourt first held that the timing of B.J.’s recertification as

autistic was acceptable. Second, the court determined that thedistrict had conducted a proper evaluation of B.J. and theprofessionals involved were qualified. Third, the court foundthat B.J.’s parents were sufficiently included in the IEPCprocess. Fourth, the court found that the district’s proposalwas designed to address B.J.’s unique needs. Finally, after anindependent review of the evidence, the court agreed with theSHO that the May IEP allowed B.J. to attain his maximumpotential. Because the school’s IEP was appropriate, thecourt held that the parents were not entitled to reimbursement.The court dismissed the remaining claims, holding that theyfailed because the court had found in defendants’ favor as tothe IEP.

The district court apparently believed that the parties had

submitted the case for review of the administrative decisionon the record. Because plaintiffs dispute that the case wassubmitted in that manner, we will treat the cause as havingbeen submitted on summary judgment.

II.

A. Standard of Review

The IDEA was designed to give children with disabilities

a free appropriate public education designed to meet theirunique needs. See 20 U.S.C.A. §§ 1401(a)(16), 1412 (West1990) (current versions at 20 U.S.C.A. §§ 1401(25), 1412(West 2000)); see also Renner v. Board of Educ., 185 F.3d

No. 98-2187 Burilovich, et al. vplacement options were not consithe SHO determined that the ePlaintiffs have not made a persuaespecially considering the districevaluations of B.J. and Dr. Meinplaintiffs shown how there is a genas to whether B.J. needed a new evahis May 1996 IEP. As the district evaluated in early 1996 and “neitheargue that a new evaluation wouresults.”

5. Timely Recertification of B.JPlaintiffs also maintain that de

recertify B.J. by waiting until 1996 even though defendants knew he w1994. Defendants dispute the daautism diagnosis. Plaintiffs cite thsets out the requirements for an apthe IDEA. One of the requiremeeducational agency “provide sapayments . . . will be used fattributable to programs which . . . . . who are handicapped . . . aeducation and related services will evaluated.” 20 U.S.C.A. § 14(current version with differences i§ 1414 (West 2000)). This statuindicate specific time periods for salso no time requirements in the Mthe district court. See Mich. Admin1983). In relevant part, that rule s

“Preprimary impaired” means a age whose primary impairment through existing criteria with340.1710 or R 340.1713 to manifests an impairment in development equal to or greater 
14 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187

4Plaintiffs assert that the change in placement was from B.J.’s home

DTT program to a fully mainstreamed school program. They cite nosupport for their assertion that the home DTT was B.J.’s previousplacement. The record indicates that B.J. was subject to an IEP developedin October, 1994, but B.J.’s parents unilaterally reduced his schoolparticipation in 1995. On the other hand, defendants fail to explain whythe change from the 1994 IEP to the 1996 IEP would not be a significantchange in placement. But cf. Dong, 197 F.3d at 801 (noting SHO’sfinding that a change in placement from a half-day to a full-day is typicalwhen a child turns five years of age).preponderance of the evidence” that the district’s staffmembers were unqualified. The district court reviewed thequalifications of the district’s staff and concluded that therewas “no evidence” they were unqualified. This holdingindicates that plaintiffs did not meet their summary judgmentburden of coming forward with evidence to create a genuineissue as to qualifications. Plaintiffs have failed to suggest onappeal how they would demonstrate a genuine issue.Therefore, while the district court cited the wrong standard,the holding was correct.

The parties also engage in a debate over whether

Michigan’s “maximum potential” standard requires thedistrict to hire “top-notch consultants” and to have personnelknowledgeable about programs related to the needs of everydisabled child. Because plaintiffs have failed to raise agenuine issue as to whether there were personnelknowledgeable about DTT at the meeting and failed to arguewhether Dr. Meinhold would be a top-notch consultant, wedecline to address the argument.

4. Evaluation of B.J. Before IEPPlaintiffs argue that the district did not conduct a required

comprehensive evaluation of B.J. before making a significantchange in his placement.4 Assuming that there was aproposed significant change in placement, we must addresswhether the evaluation in February 1996 was adequate.Plaintiffs maintain it was inadequate because B.J. wasevaluated solely for the purpose of recertification and

No. 98-2187 Burilovich, et al. v635, 644 (6th Cir. 1999). There inquiry in suits brought under 20 U1990) (current version at 20 U.S2000)). First, the court determincomplied with the procedures set Board of Educ. v. Rowley, 458 U.Sthe court assesses whether the IEact’s procedures is reasonably calto receive educational benefits. Sehas added to this standard by rdesigned to develop the “maximMich. Comp. Laws. Ann. §§ 380.1711(17)(a), 380.1751(1) (We

This court reviews both the pr

matters under a standard of “moRenner, 185 F.3d at 641; see Metrov. Guest, 193 F.3d 457, 463-64 (6th of review stems from the Supreme must give “due weight” to proceedings. Rowley, 458 U.S. at looked at the procedural safeguindicated that a court “shall recei[state] administrative proceedingevidence at the request of a party, the preponderance of the evidencethe court determines is appropriatU.S.C.A. § 1415(e)(2) (West 199“[t]he fact that § 1415(e) require‘receive the records of the [state] adcarries with it the implied requirembe given to these proceedings.” Id

This court has not elaborated 

weight.” See, e.g., Doe v. Metropo133 F.3d 384, 386-87 (6th Cir.), c(1998) (declining to resolve the 
8 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187

1Other circuits have adopted a variety of interpretations of “due

weight.” See, e.g., Adams v. Oregon, 195 F.3d 1141, 1145 (9th Cir.

1999) (courts, in recognition of the expertise of the administrative agency,must consider the findings carefully and endeavor to respond to thehearing officer’s resolution of each material issue; after suchconsideration the court is free to accept or reject the findings in part or inwhole, bestowing increased deference upon the hearing officer where herfindings are thorough and complete); Fort Zumwalt Sch. Dist. v. Clynes,

119 F.3d 607, 610 (8th Cir. 1997), cert. denied, 523 U.S. 137 (1998) (the

level of deference is less than required under the substantial evidence test,but consideration should be given to the state hearing panel’s opportunityto observe the demeanor of the witnesses); Teague Indep. Sch. Dist. v.Todd L., 999 F.2d 127, 131 (5th Cir. 1993) (court’s review is “virtuallyde novo”); Doyle v. Arlington County Sch. Bd., 953 F.2d 100, 105 (4th

Cir. 1992) (findings of fact are entitled to be considered prima faciecorrect; the court must explain its reasons if it will not follow thefindings); Doe v. Alabama State Dep’t of Educ., 915 F.2d 651, 657 n.3

(11th Cir. 1990) (the extent of deference to be given the administrativefindings of fact is an issue left to the discretion of the district court; thecourt must consider the administrative findings of fact, but is free toaccept or reject them).

definitively).1 We have held that a court cannot simply adopt

the state administrative findings without an independent reexamination of the evidence. See id. We have also indicated

that the weight due will vary, depending on whether the courtis reviewing procedural or substantive matters and whethereducational expertise is essential to the administrativefindings.

With regard to procedural matters, a court should “strictly

review an IEP for procedural compliance,” although technicaldeviations will not render an IEP invalid. Dong v. Board ofEduc., 197 F.3d 793, 800 (6th Cir. 1999); see also Doe v.

Defendant I, 898 F.2d 1186, 1190-91 (6th Cir. 1990). TheSupreme Court has emphasized the importance Congressattached to the IDEA’s procedural safeguards:

[T]he congressional emphasis upon full participation ofconcerned parties throughout the development of the IEP,as well as the requirements that state and local plans besubmitted to the Secretary for approval, demonstrates thelegislative conviction that adequate compliance with the

No. 98-2187 Burilovich, et al. v

views through letters and telepdistrict staff. Cf. Dong, 197 F.3d a

were afforded opportunity to pdistrict’s failure to reconvene an IEfrom parents, when parents attenviews at two IEPCs). Furthermorsupport for their implicit assertiodiscuss a child’s IEP, goals, omethodology out of the presence reasons, plaintiffs have failed to ddenied participation in the IEPC p

3. Qualifications of District StaPlaintiffs also argue that the dis

knowledgeable professionals regarequired by IDEA regulations. See 

(1996) (current version at 34 C(requiring that the school district “[decision is made by a group of pknowledgeable about the child, the data, and the placement options”)because they preferred Lovaas-styldecision-maker should have betreatment. More specifically, plainshould have, but did not, consult D

This court has rejected “the c

district] must include an expert method preferred by the parentrequirement that the IEPC includabout ‘placement options.’” DongRenner, 185 F.3d at 644. Furtherthat Marianne Miller, a teacher conexperience using DTT. The districreport and was able to consider it aF.3d at 801 (noting that the IEPC hspeech therapist, who utilized DTT

Plaintiffs also point out that th

wrong standard when it found they 
12 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187

1. Existence of March 1996 IEPPlaintiffs argue that the district court erred in determining

that there never was a March 1996 IEP. They maintain thatdespite the absence of a written document the evidence showsthat Mr. Greiner did not intend his proposal to be tentativeand planned to implement the IEP. Federal law and Michiganregulation, however, both indicate that an IEP is a written

document. See 20 U.S.C.A. § 1401(a)(19) (West 1990)(current version at 20 U.S.C.A. § 1401(11) (West 2000));Mich. Admin. Code r. 340.1721e (Supp. 1995). Therefore,plaintiffs cannot prevail on their claim that an IEP existed inMarch when there was no written document until May.Plaintiffs’ suggestion that the doctrine of promissory estoppelshould apply to Mr. Greiner’s statements in the Marchmeeting is equally unpersuasive. Congress created specificprocedures under the IDEA for developing an IEP, whichinclude a review process should a party such as plaintiffs bedissatisfied with the eventual IEP or the delay in creating one.

2. April 16 & 26 MeetingsNext, plaintiffs argue that they were denied meaningful

parental participation in the IEPC process because they werenot invited to two meetings in April 1996. See 34 C.F.R.

§ 300.345, 34 C.F.R. § 300, app. C, No. 26 (1996) (currentversions at 34 C.F.R. § 300.345, 34 C.F.R. § 300, app. A, No.5 (1999)). Defendants counter that the meetings on April 16and 26 were staff meetings that plaintiffs were not entitled toattend. The SHO and district court agreed with defendants’characterization of the meetings and plaintiffs do little tosuggest that the meetings were in fact IEP meetings. Cf. 34C.F.R. § 300, app. C, No. 55 (1996) (current version at 34C.F.R. § 300, app. A, No. 32 (1999)) (indicating that districtstaff may prepare information before meeting with parents).Plaintiffs have not indicated how they were prevented fromparticipating in the development of the IEP. The parentsattended a December 1996 IEPC, strongly expressed theirviews at the March 1996 IEPC, had the opportunity toparticipate in the May 1996 IEPC, and also expressed their

No. 98-2187 Burilovich, et al. v

procedures prescribed would in if not all of what Congress substantive content in an IEP.

Rowley, 458 U.S. at 206. Furtherrequirements of the IDEA are metafforded to the district’s placeme

F.3d at 800.

As for substantive issues, “[t]h

evidence’ language in the [IDEinvitation to the courts to substisound educational policy for thoswhich they review.’” See Thomas 918 F.2d 618, 624 (6th Cir. 1990) at 206). The Supreme Court has p

In assuring that the requiremenmet, courts must be careful to avof preferable educational methoprimary responsibility for formulaccorded a handicapped childeducational method most suitabwas left by the Act to state and loin cooperation with the parents 

Rowley, 458 U.S. at 207 (footnote courts are generalists with no exneeds of handicapped children afactfinding of a state agency, whexpertise in the field. See Renner, Heights-Univ. Heights City Sch. D

398-99 (6th Cir. 1998) (noting that review “militates against second expertise of the administrative predicated upon these [sic] expert

Therefore, when reviewing an I

that the state and local educationpossess expertise in education poliof the Supreme Court and this c
10 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187

educational expertise of state and local agencies leads to theconclusion that the amount of weight due depends uponwhether such expertise is relevant to the decision-makingprocess. As a result, less weight is due to an agency’sdeterminations on matters for which educational expertise isnot relevant, so that a federal court would be just as wellsuited to evaluate the situation. More weight is due to anagency’s determinations on matters for which educationalexpertise would be relevant. Furthermore, while the courtmay not substitute its own view for that of the state and localeducational agencies, see Rowley, 458 U.S. at 206-07, thedeference due to the administrative findings is less than thatgenerally accorded to administrative decisions, whereby thecourt will uphold a decision if it is supported by “substantialevidence.” See 5 U.S.C.A. § 706 (West 1996); cf. Rowley,

458 U.S. at 205 (discussing legislative history of IDEArejecting substantial evidence standard). 

This court recently described the substantial evidence test

as one in which an agency’s findings would be set aside onlywhen the record clearly precludes the administrative decisionfrom being justified by a fair estimate of the worth of thetestimony of witnesses, the agency’s informed judgment onmatters within its special competence, or both. See LoralDefense Sys.-Akron v. NLRB, 200 F.3d 436, 448 (6th Cir.1999). Because administrative findings in IDEA cases shouldbe afforded less deference than that given to agencies underthe substantial evidence test, and in view of the IDEA’spreponderance of the evidence standard, we hold thatadministrative findings in an IDEA case may be set aside onlyif the evidence before the court is more likely than not topreclude the administrative decision from being justifiedbased on the agency’s presumed educational expertise, a fairestimate of the worth of the testimony, or both. A courtshould defer to the administrative findings only wheneducational expertise is relevant to those findings and thedecision is reasonable. By so deferring, “due weight” willhave been given to the state administrative proceedings. Wealso reiterate that, when there is a conflict between theholdings of the local and state hearing officers, the court must

No. 98-2187 Burilovich, et al. v

2Plaintiffs spent some time arguing 

see no need for further discussion in light this point.

3Because we treat this case as sub

plaintiffs’ arguments on appeal as to whirrelevant. Moreover, as we recently heldof an IEP should bear the burden of provappropriate, even in a case involving Mstandard. See Dong, 197 F.3d at 799-80defer to the state hearing officer’s record on appeal.2 See Renner, 18

court must defer to the final decisi

In a case involving a motion fo

court should still apply modified ensure that there are no genuine essential to the hearing officer’s dNashville Pub. Sch., 133 F.3d a

decision, the court may still rely upresumed educational expertise, aunderlying the officer’s determina

B. Discussion

Plaintiffs raised numerous issues 

to procedural matters, plaintiffs finalized in March, not May, of 191996 were IEPC meetings from excluded; the school district knowledgeable professionals regawas not properly evaluated; and he as autistic. Plaintiffs contend threquirements of the IDEA wsubstantively invalid because it failneeds and was not designed to maximum potential. Each issue w