The HONORABLE CHARLES R. WOLLE, Chief Judge of the United

*

States District Court for the Southern District of Iowa,

sitting by designation.

 We use the term "S.D." to refer individually to the learning- 1

disabled child and collectively to appellants in these proceedings.

___________

No. 95-2497

___________

Independent School District *

No. 283, *

*

Plaintiff - Appellee, *

*

v. *

*

S.D., by her parents, J.D. *

and N.D.; J.D.; N.D., * Appeal from the United States

* District Court for the

Defendants - Appellants, * District of Minnesota.

*

Linda Powell, Commissioner *

of Education; Gene Mammenga, *

Past Commissioner of Education; *

Robert Wedl, Acting *

Commissioner of Education; *

K.S., Hearing Review Officer, *

*

Defendants - Appellees. *

___________

 Submitted: December 15, 1995

 Filed: July 2, 1996

___________

Before BOWMAN and LOKEN, Circuit Judges, and WOLLE, Chief District Judge. *

___________

LOKEN, Circuit Judge.

S.D. and her parents requested an administrative hearing under the 1

Individuals with Disabilities Education Act ("IDEA"), 20
 The HONORABLE RICHARD H. KYLE, United States District Judge 2

for the District of Minnesota, who adopted the report and

recommendation of the HONORABLE RAYMOND L. ERICKSON, United States

Magistrate Judge for the District of Minnesota.

-2-

U.S.C. § 1400 et seq., when Minnesota Independent School District No. 283

(the "School District") refused to reimburse S.D. for private school

tuition. A state-appointed hearing officer denied reimbursement, but a

hearing review officer granted S.D. this relief. The School District then

sought judicial review in federal court, and S.D. asserted counterclaims

and cross-claims under various federal and state laws. 

The district court granted judgment on the administrative record,

2

concluding that the School District had substantially complied with IDEA's

procedural requirements and had provided S.D. "a free appropriate public

education." See 20 U.S.C. § 1400(c); Board of Educ. v. Rowley, 458 U.S.

176, 203 (1982). The court dismissed S.D.'s remaining claims as precluded

by that judgment. On appeal, S.D. argues that the district court erred in

refusing to expand the administrative record, in reversing the state

hearing review officer, and in dismissing the non-IDEA claims. We affirm.

I. 

S.D. suffers from severe dyslexia, which impacts her reading and

mathematics skills, and attention deficit disorder, which affects her

concentration and learning. From kindergarten through third grade, S.D.

attended regular classes at Peter Hobart Primary Center, a public

elementary school in the School District. In first grade, an initial

special education assessment suggested that S.D. has average to above

average intelligence, but her reading, writing, comprehension, and

mathematics skills were below her ability. That prompted development of

an individualized education plan ("IEP") for S.D. Under IDEA, an IEP "sets

out the child's present educational performance, establishes annual and

short-term
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objectives for improvements in that performance, and describes the

specially designed instruction and services that will enable the child to

meet those objectives." Honig v. Doe, 484 U.S. 305, 311 (1988). See 20

U.S.C. §§ 1401(a)(20), 1414(a)(5). 

S.D. continued to be "mainstreamed" in regular classes. She also

began receiving special education services from a licensed learning

disabilities professional and "Chapter One" mathematics instruction under

a federal program designed to reinforce classroom work in a small group

setting. In 1991, while S.D. was in third grade, a psychological

consultant concluded that she is a visually-based dyslexic. She was also

diagnosed as having attention deficit disorder. Later that year, S.D.'s

mother complained that public education supplemented with special education

services was inadequate, but the School District refused to pay tuition at

Groves Learning Center ("Groves"), a private school for children with

learning disabilities. Following a conciliation conference, the School

District agreed to S.D.'s request that the psychological consultant

continue to monitor progress under the IEP.

In March 1992, the IEP was amended to provide summer instruction and

special education in math. S.D.'s parents requested that she be held back

in third grade at Peter Hobart school. The School District recommended she

be placed in third or fourth grade at Susan Lindgren Intermediate School.

After another conciliation conference, the School District agreed to

provide group and private instruction that summer, but not at Groves. In

the fall, S.D. began fourth grade at Susan Lindgren school, with a special

education teacher assigned to help her adjust to the new environment. At

the end of September, S.D.'s parents enrolled her at Groves without the

School District's consent.

S.D. then requested a hearing, challenging the IEPs and seeking

reimbursement for her tuition at Groves. The Minnesota Commissioner of

Education appointed an administrative hearing
-4-

officer. See Minn. Stat. Ann. § 120.17, subd. 3b(e); Minn. R. 3525.4000.

After a twelve-day hearing, the hearing officer made detailed findings of

fact and concluded: (i) "[e]xcept as to enhancing self-esteem," S.D.'s

initial and modified IEPs met the requirement of IDEA and Minnesota law to

provide a free appropriate public education; (ii) if S.D. had not withdrawn

from public school in September 1992, "the IEP would have produced

measurable educational benefit"; (iii) "Groves is not an appropriate

educational placement for [S.D.] . . . because Groves does not provide the

education in the least restrictive environment"; and (iv) the School

District need not reimburse S.D. for tuition at Groves but must remedy IEP

inadequacies by reimbursing S.D. for summer tutoring, attention deficit and

psychological consultations, and self-esteem counseling. The hearing

officer explained:

[S.D.]'s self-esteem is the focal point of most of the

conflicts in this matter. . . . Both sides in this matter

believe that the approach they advocate for [S.D.]'s education

is best for her own self-esteem. 

* * * * *

It is interesting to note that the District generally assessed

the same needs as did Groves and that it used virtually all of

the same teaching techniques as are being applied at Groves. .

. . Each setting has its own weaknesses and strengths. In

[S.D.]'s particular case, because of her relatively severe

learning disabilities, it could be debated forever which

program provides the better education for her. But it is not

the duty of public schools to provide the better education. It

is the duty of public schools to provide an appropriate public

education and the District in this case has done that and has

the ability to do that in the future. 

S.D. appealed to a hearing review officer. See Minn. Stat. Ann. §

120.17, subd. 3b(g). The review officer reversed. She concluded that

S.D.'s IEPs "were procedurally flawed"; the School District's services "did

not provide educational benefit"; the School District had not provided a

"free appropriate public education"; and Groves "was an appropriate

placement." Although
 Specifically, § 1983 and the Fourteenth Amendment; § 504 of 3

the Rehabilitation Act, 20 U.S.C. § 706; the Americans with

Disabilities Act, 42 U.S.C. § 12131 et seq.; the Minnesota Human

Rights Act, Minn. Stat. Ann. § 363.03, subd. 5; the Government Data

Practices Act, Minn. Stat. Ann. § 13 et seq.; and negligence. 

-5-

the review officer considered it "troubling" that S.D. spends all her time

at Groves with other children with learning disabilities, the review

officer concluded that "the Groves' environment is clearly superior for

[S.D.]'s emotional needs," and therefore the School District must pay for

S.D.'s tuition at Groves. 

The School District then commenced this action, seeking judicial

review of the review officer's adverse decision. See 20 U.S.C. § 1415(e).

S.D. asserted counterclaims and cross-claims alleging violations of IDEA,

its state law counterpart, Minn. Stat. Ann. § 120.17, and other laws. The 3

district court granted the School District judgment on the administrative

record, thereby reinstating the hearing officer's decision. Concluding

that the review officer had improperly reweighed the evidence, the court

adopted the findings of the hearing officer "as amply supported by the

preponderance of the evidence." The court further concluded that S.D. had

failed to show "solid justification" for the submission of additional

evidence. Turning to the key substantive issues, the court found that the

School District had provided S.D. a "free appropriate public education" in

a properly mainstreamed, least restrictive environment; "that Groves was

not a proper placement for S.D., within the context of the IDEA"; and

therefore, that the School District need not reimburse S.D. for tuition at

Groves. The court agreed with the hearing officer that the deficiencies

in S.D.'s IEPs were either harmless or remedied by the relief the hearing

officer granted. Finally, the court dismissed S.D.'s counterclaims because

the School District had complied with IDEA and dismissed her cross-claims

because S.D. acquiesced in any
-6-

administrative delay and suffered no harm from the Commissioner's

appointment process. S.D. appeals. 

II. 

S.D. first faults the district court for granting the School District

judgment on the 2000-page administrative record. S.D. argues that this was

procedurally improper because there were disputed issues of material fact,

no discovery had been conducted, and S.D. wished to present additional

evidence. Under IDEA, state law governs the administrative hearing process

for challenging a child's IEP. But after exhausting these remedies, an

aggrieved party may seek judicial review in federal court. In conducting

that review, the court "shall receive the records of the administrative

proceedings, shall hear additional evidence at the request of a party, and,

basing its decision on the preponderance of the evidence, shall grant such

relief as the court determines is appropriate." 20 U.S.C. § 1415(e)(2).

Although the statute permits the reviewing court to expand the

administrative record, "[d]ecision on the record compiled before the

administrative agency is the norm . . . so a party that wants the judge to

take evidence rather than decide the case on the record compiled before the

hearing officers had better tell him." Hunger v. Leininger, 15 F.3d 664,

670 (7th Cir.), cert. denied, 115 S. Ct. 123 (1994). Because the reviewing

court must give due weight to the administrative proceedings, "a party

seeking to introduce additional evidence at the district court level must

provide some solid justification for doing so." Roland M. v. Concord Sch.

Comm., 910 F.2d 983, 996 (1st Cir. 1990), cert. denied, 499 U.S. 912

(1991).

In this case, S.D. failed to present "solid justification" to expand

the administrative record. At the initial motion hearing, Magistrate Judge

Erickson asked counsel for S.D. what evidence she
-7-

wished to add to that record. Counsel cited evidence of S.D.'s recent

progress at Groves, including test results, possible court-appointed expert

testimony, and evidence of S.D.'s current emotional state. After that

hearing, it took counsel for the Commissioner months to assemble the

certified administrative record, and a year elapsed before Magistrate Judge

Erickson issued his report and recommendation. Yet during that entire

period, S.D. never submitted proposed additional evidence and never filed

a written motion to supplement the record. Similarly, S.D. complains that

the district court denied discovery regarding state administrative

practices and procedures. But S.D. does not explain how that discovery

might have produced "solid justification" for expanding the administrative

record. In these circumstances, the district court did not abuse its

discretion in basing its judicial review on that extensive record.

Judicial review of agency action may be conducted on the

administrative record even if there are disputed issues of material fact.

Under IDEA, the reviewing court bases its decision on "the preponderance

of the evidence." That is a less deferential standard of review than the

substantial evidence test common to federal administrative law. But it

still requires the reviewing court to give "due weight" to agency decisionmaking. Rowley, 458 U.S. at 206. Other circuits have applied this rather

unusual statutory standard in somewhat different fashions. See Neely v.

Rutherford County Sch., 68 F.3d 965, 969 (6th Cir. 1995) ("modified de novo

review"), cert. denied, 116 S. Ct. 1418 (1996); Doyle v. Arlington County

Sch. Bd., 953 F.2d 100, 105 (4th Cir. 1991) (hearing officer findings are

"prima facie correct"); Roland M., 910 F.2d at 990 ("bounded, independent"

judicial review). See also Capistrano Unified Sch. Dist. v. Wartenberg,

59 F.3d 884, 891-92 (9th Cir. 1995). Here, the district court faced the

task of choosing between conflicting findings and conclusions of the

hearing officer and the review officer. The court reviewed the

administrative record and, expressly applying the statutory
-8-

preponderance standard, credited the hearing officer's findings because

that fact-finder had an "opportunity to observe the demeanor of the

witnesses and to render believability determinations." The court then

rejected the review officer's analysis because it did not give sufficient

weight to the views of the School District's professional educators. That

review complied with § 1415(e)(2). See Doyle, 953 F.2d at 105-06. 

III. 

S.D. next argues that the district court, in reversing the review

officer's decision, "improperly imposed its own views of educational

methodology." In conducting judicial review, "Rowley instructs us that we

may not substitute our own 'notions of sound educational policy for those

of the school authorities.'" Petersen v. Hastings Pub. Schs., 31 F.3d 705,

707 (8th Cir. 1994). We conclude the district court did not violate this

principle. 

IDEA enacted a strong preference that handicapped children attend

regular classes with children who are not handicapped. 20 U.S.C. §

1412(5). This gives rise to a presumption in favor of S.D.'s placement in

the public schools. See Mark A. v. Grant Wood Area Educ. Agency, 795 F.2d

52, 54 (8th Cir. 1986), cert. denied, 480 U.S. 936 (1987). Here, the

district court concluded that the review officer had ignored this

presumption, had given insufficient deference to the School District's

educational decisions, and had rejected the hearing officer's wellsupported findings that S.D. had benefitted from the School District's

programs and that her IEP "was reasonably calculated to result in

measurable educational benefit." In reversing the review officer's

decision, the district court enforced the statute's educational policies,

not its own. 

In assessing the district court's analysis, we also bear in mind that

the critical issue in this case is whether to reimburse S.D. for private

school tuition. When S.D.'s parents unilaterally
 We reject as totally without merit S.D.'s contention that

4

Magistrate Judge Erickson erred in consulting medical treatises on

attention deficit disorder. Like many of S.D.'s legal arguments,

this concerns an underlying issue -- whether S.D.'s parents should

have made her take the drug Ritalin -- that is of only marginal

relevance to the issues on appeal. 

-9-

placed her in Groves, they did so "at their own financial risk."

Burlington v. Department of Educ., 471 U.S. 359, 373-74 (1985). They are

entitled to tuition reimbursement only if public school placement violated

IDEA and placement at Groves was proper under the Act. See Florence County

Sch. Dist. Four v. Carter, 114 S. Ct. 361, 366 (1993); Evans v. District

No. 17, 841 F.2d 824, 832 (8th Cir. 1988). The review officer did not cite

substantive differences between the School District's and Groves's

programs, and did not explain in educational terms why IDEA's preference

for "mainstreamed" public education should be ignored in this case. The

district court properly concluded that the review officer's decision was

inconsistent with core IDEA principles.4

IV.

S.D. next contends that the district court erred in concluding that

the "astounding" number of procedural inadequacies in her IEPs do not

entitle her to greater relief. Congress intended that IDEA's procedural

safeguards be enforced so that parents of a handicapped child will have

adequate input in the development of the child's IEP. See Rowley, 458 U.S.

at 189, 205-06. The district court concluded that the School District

substantially complied with those statutory safeguards. S.D.'s IEPs set

out educational goals and the special services to be provided. The School

District maintained open communications with S.D.'s parents and allowed

them to play an "aggressively participative role" in the development of the

IEPs. And the School District held conciliation conferences to discuss

parental complaints and heeded
 We reject S.D.'s contention that appellees waived the

5

preclusion issue by failing to plead it. Preclusion may be raised

by the court because "benefits of precluding relitigation of issues

finally decided run not only to the litigants, but also to the

judicial system." Studio Art Theatre of Evansville, Inc. v.

Evansville, 76 F.3d 128, 130 (7th Cir. 1996).

-10-

parental requests that a psychological consultant and other professionals

be involved in the IEP process. 

Having determined that the School District had met IDEA's core

procedural requirements, the court upheld the hearing officer's conclusion

that IEP deficiencies were either harmless or would be remedied by the

reimbursement of certain professional fees. We agree. The critical issue

in this case is whether S.D.'s parents should be reimbursed for

unilaterally placing her in private school. The procedural and technical

deficiencies in the IEPs that were identified by the hearing officer and

the review officer did not materially affect the resolution of that issue.

An IEP should be set aside only if "procedural inadequacies compromised the

pupil's right to an appropriate education, seriously hampered the parents'

opportunity to participate in the formulation process, or caused a

deprivation of educational benefits." Roland M., 910 F.2d at 994. See

Schuldt v. Mankato Sch. Dist. No. 77, 937 F.2d 1357 (8th Cir. 1991), cert.

denied, 502 U.S. 1059 (1992); Evans, 841 F.2d at 830-31. That did not

happen here.

V. 

Finally, S.D. argues that the district court erred in dismissing her

state and federal counterclaims as precluded. IDEA does not "restrict or 5

limit the rights, procedures, and remedies available" under other federal

law, but it does require a claimant to exhaust administrative remedies.

20 U.S.C. § 1415(f). When that process produces an administrative decision

that is upheld on judicial review under IDEA, principles of issue and claim
-11-

preclusion may properly be applied to short-circuit redundant claims under

other laws. See University of Tenn. v. Elliott, 478 U.S. 788, 796-99

(1986); Plough v. West Des Moines Community Sch. Dist., 70 F.3d 512, 515-16

(8th Cir. 1995). 

S.D.'s non-IDEA claims are based upon allegations that the School

District is guilty of (1) an unlawful grade retention policy; (2) illegal

delay in identifying handicapped children; (3) illegal use of Chapter One

funding; (4) illegal charges for summer instruction; (5) failure to ensure

a fair state hearing; (6) failure to provide equal educational opportunity;

and (7) "per se negligence by violating state and federal laws." We agree

with the district court that these claims are precluded by the IDEA

judgment in the School District's favor. This resolution of the IDEA

claims necessarily resolved issues one, two, three, and five in the School

District's favor. Issue six is also precluded by the finding that the

School District complied with IDEA, because Minnesota law is no more

demanding. See Schuldt, 937 F.2d at 1361. Issue four was remedied by the

hearing officer's reinstated order that the School District reimburse S.D.

for summer tutoring. Issue seven adds nothing to the others and in any

event was waived on appeal by S.D.'s failure to contest the district

court's determination that this theory fails to state an actionable claim.

See Primary Care Investors Seven, Inc. v. PHP Healthcare Corp., 986 F.2d

1208, 1212 (8th Cir. 1993). 

We have carefully considered the other contentions in S.D.'s brief

on appeal and conclude that each is without merit. The judgment of the

district court is affirmed.

A true copy.

Attest:

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