FILED 

United States Court of Appeals 

Tenth Circuit 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

June 6, 2005 

PATRICK FISHER 

Clerk 

T.W., by and through his parents, 

Madeline McCullough and Michael 

Wilson, 

Plaintiff-Appellant, 

V. 

UNIFIED SCHOOL DISTRICT NO. 

259, WI CHIT A, KANSAS, 

Defendant-Appellee. 

No. 04-3093 

(D.C. No. Ol-CV-1406-MLB) 

(D. Kan.) 

ORDER AND JUDGMENT. 

Before SEYMOUR, KELLY, and McCONNELL, Circuit Judges. 

After examining the briefs and appellate record, this panel has determined 

unanimously to grant the parties' request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1 (G). The case is therefore 

ordered submitted without oral argument. 

* This order and judgment is not binding precedent, except under the 

doctrines of law of the case, res judicata, and collateral estoppel. The court 

generally disfavors the citation of orders and judgments; nevertheless, an order 

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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Plaintiff-appellant T. W. is a child with Down syndrome. Through his 

parents, Madeleine McCullough and Michael Wilson, he appeals from the district 

court's order granting summary judgment in favor of defendant Unified School 

District No. 259, Wichita, Kansas ("District 259"), on his complaint brought 

under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. 

§§ 1400-1487. We affirm the district court's grant of summary judgment to 

District 259. 

FACTS 1 

T.W. was born on August 24, 1992. From 1995 until 1998, he was in Early 

Childhood Special Education classes, and he was home-schooled for most of the 

1998-99 school year. T. W.' s mother proposed that he begin the fall 1999 

semester in a kindergarten inclusion placement, with regular education students. 

In District 259, decisions about placement for special education students 

are made by a multi-disciplinary team called the IEP team. The team includes 

educational professionals (referred to collectively as the "child study team") and 

the child's parents. If a child is identified as requiring special education services, 

In an abundance of caution, we have considered the evidence in the record 

to which the plaintiff has referred in his briefs in this court. Because we affirm 

summary judgment in favor of the defendant, it is not necessary to rule on the 

defendant's objection to the use of extra-stipulation evidence. We note, 

moreover, that in the district court the defendant submitted a "statement of 

additional uncontroverted facts" citing evidence outside of the stipulation. 

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the IEP team conducts a comprehensive evaluation and prepares an Individual 

Education Plan ("IEP") for the child. The IEP addresses the child's present level 

of performance, his goals and objectives, and the related services the child needs. 

Once the goals and objectives are set, the team makes a decision on the best 

placement for the child. 

The child study team that evaluated T.W. recommended in May 1999 that 

T. W. be placed in a self-contained classroom for developmentally disabled 

children. 2 T. W.' s parents disagreed; they wanted him to begin the fall 1999 

semester in an inclusion placement at Emerson Elementary School (Emerson), 

where his brother, cousins, and neighbors attended school. The IEP team agreed 

to a nine-week trial placement in the regular education kindergarten classroom at 

Emerson, beginning in August 1999. 

In the spring of 1999 Cathy Hersh, a District 259 licensed school 

psychologist, performed a number of tests on T. W., including the Bracken Basic 

Concept Scale-Revised, the Woodcock Johnson Test of Achievement-Revised, 

and an informal assessment of his skills through play. On the Broad Knowledge 

and Skills portion of the Woodcock Johnson Test, T.W. scored in the .1 

2 The parties, the administrative decision-makers, and the district court 

frequently referred to this placement as a "self-contained mental retardation 

classroom." While there is no evidence that their use of the term was intended in 

any way to be derogatory, we consider this term stigmatizing and hence will use 

alternative expressions to refer to T.W. 's placement. 

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percentile, giving him an age equivalency of three years, two months. On the 

Broad skills portion, he scored in less than the .1 percentile, giving him an age 

equivalency of two years. 

During his placement at Emerson, T. W. received physical therapy, 

occupational therapy, speech therapy, and adaptive physical education. He also 

benefited from the services of a paraeducator (para) who accompanied him in 

class. An IEP for the trial placement was developed on August 27, 1999, and 

revised on October 12, 1999, to provide that T.W. spend 30-45 minutes twice a 

day in an interrelated classroom with other developmentally disabled students. 

Since the parents by this time had initiated due process proceedings, T.W. 

remained in the regular education class after the nine-week period under IDEA' s 

··stay put'' provisions. See 34 C.F.R. § 300.514(a). 

T. W. 's experience in the regular classroom did not go well. His teachers 

testified that not only was he unable to perform tasks performed by the other 

children in his class, but that the academic tasks he could perform often bore no 

n:scmblance to what the other children were learning. T.W. frequently became 

frustrated and acted out, disturbing the other children and disrupting the class. 

When this happened, he was removed from the classroom or placed in time out, 

interrupting classroom activities. While T. W.' s behavior and abilities improved 

to some degree over the course of each school year, nearly all of his teachers and 

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the staff providing supplementary services concluded that a regular classroom 

placement was inappropriate for T.W. and that he would do much better in a selfcontained classroom. 

Another IEP conference was held on December 21, 1999, and a proposed 

IEP was developed. After the IEP team recommended placement in a selfcontained classroom, T.W.'s parents walked out of the meeting without signing 

the IEP. 

In September 2000, the IEP team met and went through T.W.'s stay-put 

IEP. The team marked the objectives he had mastered and the percentages at 

which he had mastered them. Not all of his performance levels were updated and 

there were no revisions to his goals and objectives at that time. 

The parties engaged in due process hearings before an independent hearing 

officer (IHO) over a period of approximately twenty days. The IHO determined 

that T. W. 's proposed placement in a self-contained classroom met the IDEA' s 

Least Restrictive Environment (LRE) requirement; that the December 1999 IEP 

was reasonably calculated to provide him with a Free Appropriate Public 

Education (F APE); that District 259 had included the appropriate elements in the 

inclusion trial placement; and that District 259 had not wrongfully refused to 

update and revise the stay-put IEP. 

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An administrative reviewing officer affirmed the hearing officer's decision. 

Plaintiff then sought review in district court. The district court entered summary 

judgment in favor of the defendant, and denied plaintiff's motion for summary 

judgment. 

Over two dozen witnesses testified before the IHO, producing a very 

voluminous record. The parties are familiar with the facts, and we will not 

attempt here to describe the extensive testimony comprehensively. Instead, we 

will cite to specific, relevant portions of the record as necessary. 

STANDARD OF REVIEW 

IDEA proceedings do not follow the deferential "substantial evidence" test 

typical in judicial review of administrative proceedings. Instead, the reviewing 

court must independently decide whether the IDEA requirements have been met. 

Murray v. Montrose County Sch. Dist. RE-JJ, 51 F.3d 921,927 (10th Cir. 1995). 

"The district court must therefore independently review the evidence contained in 

the administrative record, accept and review additional evidence, if necessary, and 

make a decision based on the preponderance of the evidence, while giving 'due 

weight' to the administrative proceedings below." Id. (quotation omitted). 

This "due weight" standard means that the IHO's factual findings are 

considered prima facie correct. L.B. ex rel. KB. v. Nebo Sch. Dist., 3 79 F .3d 

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966, 974 (10th Cir. 2004). Also, "[t]he district court's proceedings must maintain 

the character of review and not rise to the level of a de nova trial." Id. 3 

This court reviews the district court's disposition de nova, applying the 

same standard that it applied. Id. We do not treat the district court's summary 

disposition as a "summary judgment" entered under Fed. R. Civ. P. 56 standards, 

however, because the district court did not attempt to determine whether genuine 

material issues of fact remained for trial. See id. Instead, its disposition was in 

essence "a judgment on the administrative agency's record," leaving us as a 

reviewing court to conduct what is essentially a de nova review of a final 

judgment on the merits. Id. Finally, we note that "[t]he district court's [legal] 

interpretations of the [IDEA] are reviewed de nova." Id. 

ANALYSIS 

1. Proposed placement in self-contained classroom and LRE 

Plaintiff contends that his proposed placement in a self-contained 

classroom violates the IDEA's LRE provisions. The IDEA provides that "[t]o the 

Plaintiff argues that the hearing officer's decision is entitled to "absolutely 

no deference" because it fails to resolve factual disputes or to make credibility 

determinations concerning the testimony of the non-expert witnesses. Aplt. 

Opening Br. at 21. He also charges that the hearing officer adopted the 

defendant's proposed findings of fact, without adequately comparing them with 

the transcripts. Plaintiffs challenges fail to overcome the presumption of 

correctness attached to the IHO's factual findings, which are generally supported 

by the record. 

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maximum extent appropriate, children with disabilities [should be] educated with 

children who are not disabled." 20 U.S.C. § 1412(a)(5)(A). "[R]emoval of 

children with disabilities from the regular educational environment [should occur] 

only when the nature or severity of the disability of a child is such that education 

in regular classes with the use of supplementary aids and services cannot be 

achieved satisfactorily." Id. The practice of integrating children with disabilities 

in regular classrooms is commonly referred to as "mainstreaming." Oberti v. Bd. 

of Educ., 995 F .2d 1204, 1207 n. l (3d Cir. 1993 ). 

The parties disagree concerning who has the burden of proving that the 

self-contained classroom is the least restrictive environment for T. W. Plaintiff 

argues that since T. W. is currently placed in a regular classroom (under the 

IDEA' s stay-put provision), District 259 must prove that moving him to a selfcontained classroom is consistent with the LRE requirement. District 259 

responds that since T. W. is the party challenging the outcome of the state 

administrative decision, he bears the burden of proof on all issues in this appeal. 

We recognize that burden of proof issues tend to be difficult in IDEA cases. 4 

4 Our case law holds that the burden of proof under the IDEA rests with the 

party attacking the child's IEP. Johnson ex rel. Johnson v. Independent Sch. Dist. 

No. 4, 921 F .2d 1022, 1026 (10th Cir. 1990). The Supreme Court has recently 

granted certiorari on this issue, which has fractured the circuit courts. Weast v. 

Schaeffer ex rel. Shaeffer, 377 F.3d 449 (4th Cir. 2004), cert. granted, 125 S. Ct. 

1300 (2005). 

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Regardless of which party bears the burden of proof on the LRE issue in this case, 

however, the evidence plainly shows that a self-contained classroom is T.W.'s 

LRE. 

In determining whether a school district has complied with the LRE 

mandate, we follow the so-called Daniel R.R. test. See L.B., 3 79 F .3d at 976-77 

(adopting test in Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048 (5th Cir. 

1989)). The Daniel R.R. test contains a two-part analysis. First, the court 

"determines whether education in a regular classroom, with the use of 

supplemental aids and services, can be achieved satisfactorily." L.B., 379 F.3d at 

976. If so, the regular classroom is the child's LRE. If not, the court next 

"determines if the school district has mainstreamed the child to the maximum 

extent appropriate." Id. 

In applying the Daniel R.R. test, we consider the following, non-exhaustive 

factors: 

Id. 

(1) steps the school district has taken to accommodate the child in the 

regular classroom, including the consideration of a continuum of 

placement and support services; (2) comparison of the academic 

benefits the child will receive in the regular classroom with those she 

will receive in the special education classroom; (3) the child's 

overall educational experience in regular education, including 

non-academic benefits; and ( 4) the effect on the regular classroom of 

the disabled child's presence in that classroom. 

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A. Steps taken to accommodate T.W. in a regular classroom 

Addressing the first factor, the district court determined that District 259 

had taken multiple steps in an attempt to accommodate T.W. in the regular 

classroom. It further concluded that these steps were entirely sufficient for IDEA 

purposes. Plaintiff argues that the steps taken to accommodate him were "few 

and far between.'' Aplt. Opening Br. at 30. We disagree. 

(1.) Supplementary aids and services 

The IDEA requires schools to make proper use of "supplementary aids and 

services" that may permit the school to educate a child with disabilities within the 

regular classroom, while addressing that child's unique educational needs. 

Oberti, 995 F.2d at 1214 (citing 20 U.S.C. § 1412(5)(B), now codified at id. 

§ 1412(a)(5)(A)). District 259 provided T.W. with a broad array of 

supplementary aids and services, including a one-on-one paraeducator, physical 

therapy, occupational therapy, speech therapy, and adapted physical education. 

Plaintiff dismisses these efforts as inadequate to accommodate him in a 

rr.:gular education classroom. He argues that the services provided were 

ineffective because there was little coordination between the providers of 

supplementary aids and services and his regular education teachers, and little 

coordination between the work done by the service providers and his regular 

education curriculum. 

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Plaintiff does not cite any specific statutory or regulatory mandate requiring 

a particular level of coordination between service providers and regular education 

teachers. Certainly, "[t]he Act does not permit states to make mere token gestures 

to accommodate handicapped students; its requirement for modifying and 

supplementing regular education is broad." Daniel R.R., 874 F.2d at 1048. 

Contrary to plaintiffs assertions, however, the record reveals that T.W.'s service 

providers frequently consulted with each other, with district special education 

personnel, and with his regular education teachers, and that they coordinated their 

efforts concerning T.W.'s education. See Aplt. App., Vol. III at 1039 ,i 42, 1044 

,i,i 65-66, 1048 ,J 81, 1051 ,J 100, 1056 ,i,i 121-22, 1059 ,J 134, 1060-61 ,i,i 144-45, 

1068 ,J 175, 1073 ,J 201, 1075-76 ,i,i 209-12, 1085-86 ,i,i 250-52, 1091 ,J 276, 1092 

,J 281; Vol. IV at 1445-47; Vol.Vat 1483-84, 1504, 1522, 1551-52, 1603-06, 

1639-40, 1644-45, 1712, 1745, 1750, 1756, 1788, 1811-12; Vol. VI at 1855-56, 

1863-64, 1889, 1892-93, 1895, 1901, 1906; Vol. VII at 2189, 2197-98, 2207-08, 

2228-29. 

While these consultations were often conducted on an informal basis, 

plaintiff fails to show that IDEA mandates regularly scheduled, formal meetings 

between service providers and teachers. We will not impose such a formal and 

inflexible requirement on District 259. See Bd. of Educ. v. Rowley, 458 U.S. 176, 

206 ( 1982) (stating IDEA does not provide "an invitation to the courts to 

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substitute their own notions of sound educational policy for those of the school 

authorities which they review.''). Indeed, plaintiff's own expert recognized that 

teachers are busy people and that meetings concerning curriculum adaptations at 

least sometimes must be done "on the run as they're walking down the hallway." 

Aplt. App., Vol. VII at 2298. 

Plaintiff also complains that his service providers did not coordinate their 

efforts with his regular education curriculum and in fact "did nothing to include 

T.W. in the regular education classroom.'' Aplt. Opening Br. at 31. There was 

testimony that T.W. had difficulty adjusting to learning conditions inside the 

regular classroom, because he was less familiar with the environment there and 

the lessons being taught there than he was in the pull-out one-on-one sessions. 

Aplt. App., Vol. VII at 2218. The record does not bear out his contention, 

however, that no effort was made to include him in activities in the regular 

classroom. See id., Vol. Vol.Vat 1564-65, 1584, 1711, 1722-23, 1752-53. 

Plaintiff also asserts, with support in the evidence, that he was often pulled 

out of the regular education classroom for sessions with service providers in the 

middle of a regular classroom project and then returned to the classroom at times 

other than during scheduled breaks. See, e.g., id., Vol. VII at 2309-11. 

Apparently, District 259 utilized this procedure to minimize the number of times 

he came and went from the regular classroom. Donna Wickham, an expert 

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witness, testified that this sort of interruption leaves a disabled child feeling less 

responsible for work in the regular classroom and makes other children less likely 

to see him as a member of the class. While District 259 might have done a better 

job of scheduling T.W. 's pull-out sessions to coordinate with his regular class 

schedule, and perhaps provided him better assistance with the transitions, this by 

itself does not signify an ineffectual attempt at providing supplementary aids and 

services. We conclude that T.W. received a more than adequate array of 

supplementary aids and services. 

(2.) Training and support for Emerson staff 

Plaintiff argues that the training of his teachers and the Emerson staff was 

"woefully inadequate." Aplt. Opening Br. at 32. His principal complaint appears 

to be that the providers and staff were not specifically trained for work with 

Down syndrome children, or did not have experience with Down syndrome 

children. See, e.g., Aplt. App. Vol. V at 1541-43. We note, however, that "the 

IDEA ... does not require special education service providers to have every 

conceivable credential relevant to every child's disability." Hartmann ex rel. 

Hartmann v. Loudon County Ed. of Educ., 118 F.3d 996, 1004 (4th Cir. 1997). 

The weight of the evidence shows that T. W.' s teachers and District 259's special 

education staff in fact had adequate training and/or experience to work with 

T.W.'s needs. See Aplt. App. Vol. III at 1036 i131, 1040 i149, 1044 i167, 1049 

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iJ 84, 1050 iJ 90, 1051 iJ 98, 1054 iJ 114; Vol. IV at 1375, 1404, 1417-19, 1454-55; 

Vol.Vat 1500-01, 1507, 1516, 1523, 1545-47, 1571, 1585, 1592-94, 1596-98, 

1648-49, 1686-87, 1742-43, 1745-46, 1751-54, 1792, 1804-05; Vol. VI at 

1842-43, 1845, 1865-68; Vol. VII at 2167-68, 2211. 

Marsha Sears, T.W.'s occupational therapist, for example, had thirty years' 

experience in that field, and had attended workshop training on inclusion 

techniques. Marilyn Albert, his speech therapist, had a master's degree in 

speech/language and nearly eleven years' experience in District 259. Stella 

Holtzclaw, T.W.'s kindergarten teacher at Emerson, was given a book and a video 

about working with children with Down syndrome and articles on inclusion. She 

received assistance during the school year from District 259 personnel, including 

its special education coordinator, its teaching specialist with expertise in 

functional curriculum and behavior improvement plans, and other district 

personnel. Darla Loggans, T.W. 's first grade teacher, had prior experience with 

including and teaching special education children. She attended a district inservice on inclusion, did internet research concerning Down syndrome, and 

consulted with other district personnel concerning T.W.'s education. Although 

Pat Mhate, the District's special education teacher, had not previously worked 

with a Down syndrome child, she did reading and research to prepare for his 

arrival at Emerson and sought advice from a friend who was a professor of early 

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childhood development. We conclude that T. W.' s teachers and the Emerson staff 

received adequate training and support. 

(3.) T.W.'s behavior intervention plan 

The IDEA regulations indicate that "in the case of a child whose behavior 

impedes his or her learning or that of others" the IEP team should consider 

"positive behavioral interventions, strategies, and supports to address that 

behavior." 20 U.S.C. § 1414(d)(3)(B)(i); 34 C.F.R. § 300.346(a)(2)(i). Plaintiff 

argues that District 259 "has never provided T.W. with appropriate behavior 

supports.'" Aplt. Opening Br. at 34. We disagree. 

District 259 developed a behavioral intervention plan (BIP) for T.W. in 

August 1999. Plaintiff argues that this plan was inadequate because it was 

prepared before District 259 had any experience with T.W. and without a proper 

functional assessment. 5 He also complains that the plan was never revised, even 

after members of the IEP team had gained more experience with T. W. and his 

behaviors. 

To the extent plaintiff argues that the BIP is substantively deficient, he 

faces an uphill battle. Neither the IDEA nor its implementing regulations 

5 A functional assessment identifies problem behaviors, analyzes why a 

student engages in them (the events or motivations "triggering" the behavior), 

predicts when the behaviors are most and least likely to occur, and develops 

strategies to deal with the behaviors. See Aplt. App., Vol. VII at 23 81. 

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prescribe any specific substantive requirements for a BIP. See Alex R. ex rel. 

Beth R. v. Forrestville Valley Cmty. Unit Sch. Dist. #221, 375 F.3d 603,615 (7th 

Cir.), cert. denied, 125 S. Ct. 628 (2004 ). Courts should be leery of creating such 

substantive requirements "out of whole cloth" where neither Congress nor the 

Department of Education, the agency charged with promulgating regulations for 

the IDEA, has done so. Id. 

In any event, plaintiff fails to show that the BIP was an inadequate 

accommodation. Connie Coulter, a district teaching specialist, and Dr. Jim 

Vincent, who had previously developed a behavior plan for T.W.'s parents to use, 

worked together to develop the BIP. Aplt. App., Vol. Vat 1550-51. Admittedly, 

Dr. Vincent believed that the BIP contained certain deficiencies. He explained 

that District 259 should have collected data on target behaviors, but failed to do 

so. Id., Vol. VI at 2125. He also believed that the District should have done a 

functional assessment of high-risk situations. Id. at 2127. Donna Wickham, 

another expert who observed T. W., also pointed out similar alleged deficiencies 

in the BIP. Id., Vol. VIII at 2763. Bryna Siegel, another expert witness who 

observed T.W., testified, however, that the reason the BIP did not work well for 

T. W. was "not because thought hasn't been put into how to do it or it hasn't been 

executed right,'' id., Vol. VI at 1999, but because the principal antecedent to 

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T. W. 's bad behavior was "developmentally inappropriate instruction" in the 

regular classroom, id. at 2000. 

Plaintiff also argues that the BIP should have been modified. Some of 

T. W.' s teachers expressed concern about the failure to implement a modified BIP. 

See id., Vol. Vat 1616-17, 1664. The evidence shows, however, that District 259 

did propose modifications to the plan, which Dr. Vincent thought were "pretty 

good," id., Vol. III at 1100 ,i 320, but the district could not implement the 

modifications because it did not have consent from T. W.' s parents to do so. In 

any event, Ms. Siegel testified that modifications would not have solved T.W.'s 

behavioral problems, because their source was the fact that he was being 

instructed at an inappropriately high level in the regular classroom. Id., Vol. VI 

at 2001. In sum, the evidence supports the conclusion of the IHO that the 

behavioral supports were adequate. 

( 4.) Modifications to curriculum 

Plaintiff argues that modifications to the curriculum to accommodate his 

disability were "few and far between." Aplt. Opening Br. at 36. At least one of 

the expert witnesses believed that the adaptations she observed could have been 

improved. See Aplt. App., Vol. VII at 2371-72. T.W.'s para testified that he did 

not observe any formal planning conferences to develop adaptations. Id. at 2171. 

One of plaintiff's expert witnesses testified that adaptations should be formally 

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planned rather than being made on-the-spot. Id. at 2296-97. Despite these 

criticisms, the great weight of the evidence shows that T.W. 's teachers did make a 

significant effort to adapt the curriculum to his needs. See id., Vol. Vat 1509-10, 

1588-90, 1591-92, 1602, 1634, 1713, 1754-55, 1757, 1760-63, 1767-71, 1773-76, 

1777-78, 1787; Vol. VI at 1856-60, 1940-41; Vol. VII at 2228-29, 2234. 

\Vith or without specific modification or adaptation, there were many 

activities that T.W. could and did participate in with the other students. Id., Vol. 

Vat 1533, 1575, 1801-02; Vol. VII at 2186-87, 2192. Often, however, the 

modifications to the curriculum required were so extreme that T .W. 's activities 

barely resembled those of his classmates, id., Vol. IV at 1475-76; Vol.Vat 1522, 

1608-09, 1612-13; Vol. VI at 1930; T.W. could not do the activity even as 

modified, id., Vol. Vat 1780-81; Vol. VI at 1970-72; Vol. VIII at 2668-69; or 

further modification was simply infeasible, id., Vol. V at 1715; Vol. VI at 

1883-84, 2004. Overall, the record establishes that the modifications provided to 

T. W. were not inadequate. 

(5.) Conclusion 

A preponderance of the evidence supports the conclusion of the IHO, 

affirmed by the district court, that District 259 provided T.W. with sufficient 

accommodation for purposes of IDEA. 

B. Special education vs. regular classroom 

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The second factor to be considered under the Daniel R.R. test is a 

comparison of the academic benefits T. W. will receive in the regular classroom 

with those he will receive in the special education classroom. Pointing to the 

progress T. W. has made on his IEP goals, plaintiff argues that T. W. can meet the 

requirements of his IEP in a regular educational environment. This being the 

case, he argues, a presumption arises that a non-regular educational placement 

would be improper and could not constitute a F APE for him, even if he would 

perform better academically in a self-contained classroom than in a regular 

classroom. 

This argument is greatly weakened, however, if we accept the IHO's 

conclusion that T.W.'s progress on his IEP goals was solely the result of the time 

he spent in one-on-one instruction in the interrelated room, and that he received 

no benefit from the regular education class. Plaintiff contests the IHO's finding 

on two grounds. First, he argues that some of his goals must have been met by 

what he learned in the regular classroom, rather than through one-on-one 

instruction. Plaintiff fails to quantify the achievements allegedly arrived at solely 

through regular classroom activities, however, and he provides no solid basis for 

challenging the IHO's conclusion. The IHO relied for his finding on testimony 

from witnesses who had worked with T.W. over a long period of time. 

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Second, plaintiff falls back on his leitmotif in this case: that if T.W. failed 

to make progress in the regular classroom, it was the fault of his teachers and 

service providers, and was not due to any personal inability to receive an 

appropriate education in the regular classroom environment. See Aplt. Opening 

Br. at 41 ("[T]here is absolutely no evidence that T .W. could not be satisfactorily 

educated in the regular education class if defendant had provided him with the 

proper supports and services."). As we have seen, however, the evidence does 

not support plaintiff's persistent attacks on the adequacy of the instruction he 

received. 

While there was testimony that T.W. 's IEP goals could be fulfilled in either 

a regular classroom or a self-contained environment, other testimony indicated 

that T.W. was receiving no benefit from being in the regular classroom. The 

lHO, who heard all the testimony, resolved this issue in favor of District 259. His 

conclusions appear to be supported by a preponderance of the evidence. 

Finally, plaintiff argues that T. W. would receive no benefit from instruction 

in the self-contained classroom. He contends that the self-contained placement 

targds daily living skills that he had already acquired. This description does not 

adequately portray the functional-based curriculum of the self-contained 

classroom, which'" gears toward life skills and independent living."' Aplt. App., 

Vol. III at 1082 ,-J 233. Susan Rothwell, who teaches the self-contained classroom 

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at Emerson, testified that the goal of the classroom is to build "'skills that are 

required for [students] to live independently, to hold a job, to take care of their 

home, to manage their finances as much as possible."' Id. With this in mind, 

students are taught, among other things, "basic information such as months, years, 

seasons, colors, numbers, and alphabet" and more advanced skills including 

"learning writing skills; improving fine and gross motor skills; and building prereading skills." Id. ,i 234. We cannot agree with plaintiff that T.W. would 

receive no benefit from instruction in a self-contained classroom. 

C. T.W.'s experience in regular education 

Plaintiff contends that T. W. 's overall educational experience in regular 

education has been positive and beneficial. To the extent plaintiff acknowledges 

any deficiencies in his regular classroom experience, he unsurprisingly tends to 

blame them on inadequacies in the instruction he received rather than the 

unsuitability of the regular classroom for his education. Plaintiff correctly notes 

that he has made some academic and behavioral progress in the regular classroom. 

These benefits, however, hardly outweigh the evidence presented that T.W.'s 

behavior is considerably worse in the regular classroom than in other settings, see 

id., Vol.Vat 1719, 1729, 1789; Vol. VI at 1996-97, and that T.W.'s progress 

toward achieving his IEP objectives is primarily due to work done in his one-onone pullout sessions with his related service providers. 

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D. Effect of T.W.'s presence in classroom 

There is evidence to support plaintiff's contention that T. W.' s classroom 

presence has had some positive influence on other students, teaching them 

tolerance for persons with disabilities. On the other hand, a much larger amount 

of evidence indicates that T. W.' s presence in the regular classroom has often been 

disruptive. See, e.g., Aplt. App., Vol. III at 1071, 192; Vol.Vat 1615-16, 1788; 

Vol. VI at 1849; Vol. VIII at 2616-30. Considering the evidence overall, this 

factor weighs against T. W.' s continued placement in the regular classroom. 

E. Mainstreaming 

A preponderance of the evidence supports a conclusion that T. W.' s 

education cannot be achieved satisfactorily in the regular classroom, even with 

the use of appropriate supplemental aids and services. This being the case, we 

move on to the second step in the Daniel R.R. test, whether District 259 has 

mainstreamed T.W. to the maximum extent appropriate. The district court found 

that plaintiff had failed to address this prong of the analysis, and he also makes 

no argument on this point in his briefs in this court. See Aplt. Opening Br. at 30 

n.6. We note, however, that if the district's recommendation is followed, and 

T. W. is placed in a self-contained classroom, he will continue to have 

opportunities to interact with regular education students in music, physical 

education, lunch and recess, and on other occasions as appropriate. See Aplt. 

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App., Vol. III at 10831237. Given the amount of frustration that T.W. has 

exhibited and his lack of engagement in the regular education classroom, the 

District 259 staff members serving on his IEP team believed that such a 

placement would be appropriate. See id. at 1039144, 1043161, 1047177, 1053 

~[ 1 0 9, 1 0 5 5 1 1 1 9, 1 0 6 5 1 16 3, 1 0 6 9 ~11 8 I -8 2, I 0 8 0-8 1 1 2 2 8, I 0 8 8 1 2 6 1. We 

conclude that District 259 has mainstreamed T. W. to the maximum extent 

appropriate. 

2. FAPE in inclusion trial placement 

Contending that the nine-week trial placement was "crucial to T.W. 's 

success in regular education," plaintiff charges that defendant sabotaged that 

placement by failing to adequately train his teachers, failing to adapt the 

curriculum for T.W., and failing to adequately communicate with T.W.'s parents 

during the trial placement. Aplt. Opening Br. at 25. These failures, plaintiff 

charges, denied him a FAPE. See 20 U.S.C. § 1412(a)(l)(A) (requiring states to 

provide a FAPE to children with disabilities). We have already discussed in some 

detail, with extensive references to the record, the training and experience of 

T. \\' ." s teachers and the adaptations made to the curriculum for him. 6 There is no 

1

• While not all of the evidence cited relates specifically to the nine-week 

initial trial placement, there was significant evidence of teacher training and 

qualifications relating to this period. There was also evidence of curriculum 

modifications made during this period. See Aplt. App., Vol. V at 1602 (testimony 

(continued ... ) 

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merit to plaintiffs contention that these alleged failures denied him a F APE. 

The only remaining issue pertaining to the alleged sabotage of the trial placement 

concerns the asserted failure to communicate. 

Plaintiff argues the non-controversial point that parents can provide critical 

information concerning their child's strengths. He further asserts that 

communication was particularly important during the trial placement. The IDEA 

regulations specifically discuss communication between schools and parents of 

children with disabilities. These regulations require schools to inform the parents 

of the child's progress at least as often as parents of nondisabled children are 

informed of their children's progress. 34 C.F.R. § 300.347(a)(7)(ii). T.W. fails to 

show that the amount of contact between the school and his parents did not equal 

or exceed the amount of communication between the school and the parents of 

nondisabled children. The IDEA does not require schools to communicate with 

the parents of disabled children as frequently as the parents may wish. 

Plaintiff complains specifically that Ms. Holtzclaw, T.W.'s kindergarten 

teacher, initially refused to communicate with his parents outside the setting of 

the formal nine-week parent-teacher conferences. Ms. Holtzclaw explained that 

she requested that her communication with the parents be limited to formal 

6

( ... continued) 

of Ms. Holtzclaw, T.W.'s kindergarten teacher, that '"the curriculum was always 

modified for [T.W.].''). 

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contacts because she was unsure of the appropriate district protocols. See Aplt. 

App., Vol.Vat 1660. She was also understandably concerned by unsolicited 

negative comments the parents had made about one of T. W.' s preschool teachers 

when they completed T.W. 's Emerson enrollment packet. Id., Vol. III at 1064 

1155; Vol.Vat 1673-74. In February 2000, after T.W.'s mother wrote to the 

Emerson teacher liaison requesting regularly scheduled meetings, Ms. Holtzclaw 

agreed to meet with T.W. 's parents every two weeks. We conclude that the 

asserted lack of communication does not rise to the level of denying T.W. a 

FAPE. 

3. Prejudgment of placement issues 

Finally, plaintiff argues that District 259 denied him a FAPE and violated 

the IDEA by determining his placement without regard to his IEP. He contends 

that District 259 decided to place him in a self-contained classroom without even 

considering whether the goals and objectives in his IEP could have been served in 

the regular education classroom, thus short-circuiting the procedural protections 

provided by the IEP process. 

Plaintiff complains that Pat Mhate, the special education teacher at 

Emerson, testified that she would have recommended a self-contained placement 

for T. W. as part of the December 1999 IEP, regardless of the goals and objectives 

contained in his IEP. See id., Vol. VI at 1936. It is also true, however, that 

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Ms. Mhate prepared goals and objectives that could be served in either a selfcontained classroom or a regular education classroom. Plaintiff fails to show that 

the goals and objectives she developed were inappropriate for T.W. One of 

plaintiff's experts, in fact, testified that the IEP goals and objectives appeared to 

be appropriate for T.W.'s level of performance. Id., Vol. III, at 1136-37, 470. 

Thus, any initial predisposition that Ms. Mhate had in favor of a self-contained 

placement, based on her prior experience with T.W., does not appear to have 

fatally infected the IEP process. 

Certainly, it is improper for an IEP team to predetermine a child's 

placement, and then develop an IEP to justify that decision. See Spielberg ex rel. 

Spielberg v. Henrico County Pub. Sch., 853 F .2d 256, 259 ( 4th Cir. 1988). This 

does not mean, however, that district personnel should arrive at the IEP meeting 

pretending to have no idea whatsoever of what an appropriate placement might 

he . .. Spielberg makes clear that school officials must come to the IEP table with 

an open mind. But this does not mean they should come to the IEP table with a 

hlank mind." Doyle v. Arlington County Sch. Bd., 806 F. Supp. 1253, 1262 (E.D. 

Va. 1992), aff'd, No. 92-2313, 1994 WL 592686 (4th Cir. Oct. 31, 1994). 

At the time of the December 1999 IEP, the IEP team already had nearly a 

semester's worth of experience with T.W. Their experience had demonstrated 

that even if appropriate goals and objectives were included in the IEP, it would be 

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inappropriate and infeasible to implement the IEP in a way that was tied to the 

regular education curriculum. T.W.'s frustration with instruction in the regular 

classroom had already led them to recommend additional one-on-one time for him 

in the interrelated room. Notes from the November 9, 1999, December 14, 1999 

and December 21, 1999 IEP team meetings indicate that contrary to plaintiff's 

assertions, placement issues were in fact discussed in some detail, with pros and 

cons of the existing trial placement being hashed out by the participants. See 

Aplt. App., Vol. VIII at 2719-27. The preponderance of the evidence supports 

District 259's position that it did not impermissibly prejudge T.W.'s placement. 

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CONCLUSION 

The judgment of the district court, granting summary judgment for 

District 259, and denying plaintiff's motion for summary judgment in this IDEA 

case, is AFFIRMED. 

Entered for the Court 

Michael W. McConnell 

Circuit Judge 

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