### The HONORABLE CHARLES R. WOLLE, Chief Judge of the Unite d * 

### States District Court for the Southern District of Iowa , sitting by designation. We use the term "S.D." to refer individua lly to the learning- 1 

### disabled child and collectively to appellants in these proce edings. ___________ 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 Judg es, 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 th e District of Minnesota, who adopted the report an d recommendation of the HONORABL E 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 schoo l tuitio n. 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 d istrict court granted judgment on the administrative record , 2 concluding that the School District had substant ially 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 rem aining claims as precluded by that judgment. On appeal, S.D. argues that t he district court erred in refusi ng to expand the administrative record, in reversing the stat e hearing review officer, and in dismissing the no n-IDEA claims. We affirm.

I.

S.D. suffers from severe dyslexia, which impacts her reading an d mathema tics skills, and attention deficit disorder, which affects he r concentration and learning. From kindergarten through third grade, S.D. attend ed regular classes at Peter Hobart Primary Center, a publi c elementary school in the School District. In first grade, an initia l specia l education assessment suggested that S.D. has average to abov e average intelligence, but her reading, writing, comprehension, an d mathematics skills were below her ability. That prompted development of
an individualized education plan ("IEP") for S.D. Under IDEA, an IEP "set s out the child's present educational performance, establishes annual an d short-term

### -3-

objectives for improvements in that performance, and describes th e specially designed in struction 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 als o began receiving special education services from a licensed learnin g disabilities professi onal and "Chapter One" mathematics instruction under
a federal program designed to reinforce classroom work in a small grou p setting. In 1991, while S.D. was in third grade, a psychologica l 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 educatio n services was inadequate, but the School District refused to pay tuition at Groves Learning Center ("Groves"), a private school for children wit h learning disabilities. Following a conciliation conference, the Schoo l Distr ict agreed to S.D.'s request that the psychological consultan t continue to monitor progress under the IEP.

In March 1992, the IEP was amended t o provide summer instruction and special education in math. S.D.'s parents reque sted that she be held back in third grade at Peter Hobart school. The School District recommended sh e be placed in third or fourth grade at Susan Lindgren Intermediate School. Af ter another conciliation conference, the School District agreed t o provide group and pri vate instruction that summer, but not at Groves. In the fall, S.D. began fourth grade at Susan Lindg ren school, with a special education teacher ass igned to help her adjust to the new environment. At the end of September, S.D.'s parents enrolled her at Groves without th e School District's consent.

S.D. then requested a hearing, challenging the IEPs and seekin g rei mbursement for her tuition at Groves. The Minnesota Commissioner o f Education appointed an administrative hearing

### -4-

officer. See Minn. S tat. Ann. § 120.17, subd. 3b(e); Minn. R. 3525.4000. After a twelve-day he aring, the hearing officer made detailed findings of fac t 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 pub lic school in September 1992, "the IEP would have produce d
me asurable educational benefit"; (iii) "Groves is not an appropriat e educational placement for [S.D.] . . . because G roves does not provide the educat ion in the least restrictive environment"; and (iv) the Schoo l District need not reimburse S.D. for tuition at Groves but must remedy IEP inadequacies by reimbursing S.D. for summer tutoring, attention deficit an d psy chological consultations, and self-esteem counseling. The hearin g officer explained:

[S.D.] 's self-esteem is the focal point of most of th e conflicts in this matter. . . . Both sides in this matte r believe that the approac h they advocate for [S.D.]'s education is best for her own self-esteem.
* * * * * It is interesting to not e that the District generally assessed the same needs as did Gr oves and that it used virtually all of the same teaching techni ques as are being applied at Groves. .

. . Eac h setting has its own weaknesses and strengths. I n [S.D.]'s particular case, because of her relatively sever e learn ing disabilities, it could be debated forever whic h programprovides the better education for her. But it is not the duty of public schools to provide the better ed ucation. It is the duty of public sc hools 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. a ppealed to a hearing review officer. See Minn. Stat. Ann. § 120.1 7, subd. 3b(g). The review officer reversed. She concluded tha t S.D.'s IEPs "were procedurally flawed"; the School District's services "di d not provide educational benefit"; the School District had not provided a "free appropriate public education"; and Groves "was an appropriat e placement." Although

### Specifically, § 1983 and the Fourteenth Amendment; § 504 of 3 

### the Rehabilitation Act, 20 U.S.C. § 706; the Americans wit h Disabilities Act, 42 U.S.C. § 12131 et seq. ; the Minnesota Huma n Rights Act, Minn. Stat. Ann. § 363.03, subd. 5; the Governme nt Data Practices Act, Minn. Stat. Ann. § 13 et seq. ; and negligence.

-5- the review officer considered it "troubling" tha t S.D. spends all her time at Gro ves with other children with learning disabilities, the revie w office r concluded that "the Groves' environment is clearly superior fo r [S.D.]'s emotional ne eds," and therefore the School District must pay for S.D.'s tuition at Groves.

The School District then commenced this action, seeking judicia l review of the review officer's adverse decision. See 20 U.S.C. § 1415(e). S.D. asserted counter claims and cross-claims alleging violations of IDEA, its state law counterpart, Minn. Stat. Ann. § 120.17, and other laws. The 3 district court grante d the School District judgment on the administrative record, thereby reinstating the hearing officer's decision. Concludin g that the review officer had improperly reweighed the evidence, the court adopt ed the findings of the hearing officer "as amply supported by th e preponderance of the evidence." The court furth er concluded that S.D. had failed to show "solid justification" for the submission of additiona l evidence. Turning to the key substantive issues , the court found that the School District had provided S.D. a "free approp riate 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"; an d therefore, that the School District need not rei mburse S.D. for tuition at Groves. The court agreed with the hearing officer that the deficiencies in S.D.'s IEPs were e ither harmless or remedied by the relief the hearing officer granted. Finally, the court dismissed S.D.'s counterclaims becaus e the School District h ad complied with IDEA and dismissed her cross-claims because S.D. acquiesced in any

### -6-

adm inistrative 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 Di strict judgment on the 2000-page administrative record. S.D. argues that this wa s procedurally improper because there were dispute d issues of material fact,
no discovery had been conducted, and S.D. wished to present additiona l evidence. Under IDEA, state law governs the administrative hearing proces s for challenging a child's IEP. But after exhausting these remedies, a n aggrieved party may s eek judicial review in federal court. In conducting tha t review, the court "shall receive the records of the administrativ e 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 th e ad ministrative record, "[d]ecision on the record compiled before th e administrative agency is the norm . . . so a par ty that wants the judge to take evidence rather than decide the case on the record compiled before th e 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 reviewin g court must give due weight to the administrative proceedings, "a part y 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. 91 2 (1991).
In this case, S.D. failed to present "solid justification" to expand the administrative record. At the initial motion hearing, Magistrate Judg e Erickson asked counsel for S.D. what evidence she

### -7-

wished to add to that record. Counsel cited evidence of S.D.'s recen t progress at Groves, including test results, possible court-appointed exper t testimony, and evidence of S.D.'s current emotional state. After tha t hear ing, it took counsel for the Commissioner months to assemble th e certified administrative record, and a year elapsed before Magistrate Judg e Erickson issued his report and recommendation. Yet during that entir e period, S.D. never su bmitted proposed additional evidence and never filed a written motion to supplement the record. Simi larly, S.D. complains that the district court denied discovery regarding state administrativ e practices and procedures. But S.D. does not explain how that discover y might have produced "solid justification" for expanding the administrative record. I n these circumstances, the district court did not abuse it s discretion in basing its judicial review on that extensive record.

Judicial review of agency action may be conducted on th e administrative recordeven if there are disputed issues of material fact. Under IDEA, the reviewing court bases its decision on "the preponderance of the evidence." Th at is a less deferential standard of review than the sub stantial evidence test common to federal administrative law. But i t still requires the reviewing court to give "due weight" to agency decision

making. Rowley , 458 U.S. at 206. Other circuit s 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 nov o review"), cert. denie d , 116 S. Ct. 1418 (1996); Doyle v. Arlington County Sch. Bd. , 953 F.2d 10 0, 105 (4th Cir. 1991) (hearing officer findings are

" prima facie correct"); Roland M. , 910 F.2d at 9 90 ("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 o f choosing between conflicting findings and conclusions of th e hearing o fficer and the review officer. The court reviewed th e administrative record and, expressly applying the statutory

### -8-

prepo nderance standard, credited the hearing officer's findings becaus e that fact-finder had an "opportunity to observe the demeanor of th e witnes ses and to render believability determinations." The court the n rejected the review o fficer's analysis because it did not give sufficient weight to the views of the School District's pro fessional 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 revie w of ficer's decision, "improperly imposed its own views of educationa l methodology." In conducting judicial review, " R owleyinstructs us that we may not substitute ou r 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 atten d regular c lasses with children who are not handicapped. 20 U.S.C. § 1412(5). This gives rise to a presumption in fa vor of S.D.'s placement in the public schools. See Mark A. v. Grant Wood A rea Educ. Agency , 795 F.2d 52, 54 (8 th Cir. 1986), cert. denied , 480 U.S. 936 (1987). Here, th e distri ct court concluded that the review officer had ignored thi s pres umption, had given insufficient deference to the School District' s educa tional decisions, and had rejected the hearing officer's well

suppor ted findings that S.D. had benefitted from the School District' s progr ams and that her IEP "was reasonably calculated to result i n
measu rable educational benefit." In reversing the review officer' s decision, the distric t court enforced the statute's educational policies, not its own.
In assessing the district court's analysis, we also bear in min d 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 tha t 4 

### Magistrate Judge Erickson erre d in consulting medical treatises on attention deficit disorder. Like many of S.D.'s legal arguments, this concerns an underlying is sue -- whether S.D.'s parents should have made her take the drug Ritalin -- that is of only margina l relevance to the issues on appeal.
-9- pl aced her in Groves, they did so "at their own financial risk. " Burlington v. Departm ent of Educ. , 471 U.S. 359, 373-74 (1985). They are entitled to tuition reimbursement only if public school placement violated IDEA andplacement at Groves was proper under the Act. See Florence Count y 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 cit e 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 "as tounding" number of procedural inadequacies in her IEPs do no t entitle her to greater relief. Congress intended that IDEA's procedural safeguards be enforced so that parents of a handicapped child will hav e adequate input in the development of the child's IEP. See Rowley , 458 U.S

. at 18 9, 205-06. The district court concluded that the School Distric t substantiallycomplied with those statutory safeguards. S.D.'s IEPs set out educational goals and the special services t o be provided. The School District maintained open communications with S.D.'s parents and allowe d them to play an "aggressively participative role" in the development of th e IEP s. And the School District held conciliation conferences to discus s parental complaints and heeded

### We reject S.D.'s contention that appellees waived th e 5 

### preclusion issue by failing to plead it. Preclusion may be raised by the court because "benefits of precluding relitigation of issues fi nallydecided run not only to the litigants, but also to th e judici al system." Studio Art Theatre of Evansville, Inc. v

. Evansville , 76 F.3d 128, 130 (7th Cir. 1996).
-10- parental requests tha t a psychological consultant and other professionals be involved in the IEP process.
Having determined that the School District had met IDEA's cor e procedural requirements, the court upheld the he aring officer's conclusion that IEP deficiencies were either harmless or would be remedied by th e reimbursement of certain professional fees. We agree. The critical issue in this c ase is whether S.D.'s parents should be reimbursed fo r 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 th e pupil's right to an appropriate education, serio usly hampered the parents' opport unityto participate in the formulation process, or caused a deprivati on of educational benefits." Roland M. , 910 F.2d at 994. Se e Schuldt v. Mankato Sch. Dist. No. 77 , 937 F.2d 1 357 (8th Cir. 1991), cert. denied , 502 U.S. 1059 (1992); Evans , 841 F.2d at 830-31. That did no t happen here.

V.
Finally, S.D. argues that the distri ct court erred in dismissing her state and federal counterclaims as pr ecluded. IDEA does not "restrict or 5 limit the rights, pro cedures, 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 decisio n that is upheld on judicial review under IDEA, principles of issue and clai m

### -11-

preclusion may properly be applied to short-circ uit redundant claims under oth er laws. See University of Tenn. v. Elliott , 478 U.S. 788, 796-9 9 (1986); Plough v. West Des Moines Community Sch. Dist. , 70 F.3d 512, 515-1 6 (8th Cir. 1995).

S.D.'s non-IDEA claims are based upon allegations that the Schoo l 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 instruct ion; (5) failure to ensure

a fair state hearing; (6) failure to provide equal educational opportunity ; and (7) "per se negligence by violating state an d federal laws." We agree with the district court that these claims are precluded by the IDE A judgment i n the School District's favor. This resolution of the IDE A claims necessarily resolved issues one, two, thr ee, and five in the School District's favor. Issue six is also precluded by the finding that th e Scho ol District complied with IDEA, because Minnesota law is no mor e demanding. See Schuldt , 937 F.2d at 1361. Issu e four was remedied by the hearing officer's reinstated order that the Scho ol District reimburse S.D. for sum mer tutoring. Issue seven adds nothing to the others and in an y
even t was waived on appeal by S.D.'s failure to contest the distric t 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 brie f
on appe al and conclude that each is without merit. The judgment of th e district court is affirmed.

A true copy.

Attest:

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