# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted April 5, 2013 *

Decided April 26, 2013

Before

FRANK H. EASTERBROOK, Chief Judge

DIANE P. WOOD

, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 12

‐ 2880

D.W., through her parents JOHNNY

and BEVERLY WILLIAMS,

Plaintiff

‐ Appellant,

v.

MILWAUKEE PUBLIC SCHOOLS,

Defendant

‐ Appellee. Appeal from the United States District

Court for the Eastern District of Wisconsin.

No. 10

‐ CV

‐ 1113

‐ JPS

J.P. Stadtmueller,

Judge

.

O R D E R

Johnny and Beverly Williams and their daughter, D.W., appeal the district court’s

entry of summary judgment in favor of Milwaukee Public Schools, arguing that the schools

violated the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400–1482, by

failing to provide D.W. with a free, appropriate public education. We affirm. 

### NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

* After examining the briefs and the record, we have concluded that oral argument is

unnecessary. Thus, the appeal is submitted on the briefs and the record. See F ED

. R. A PP

.

P. 34(a)(2)(C).No. 12

‐ 2880 Page 2

D.W. has received special education since the first grade, when she was assessed

with moderate cognitive disability. Her most recent intelligence tests indicate an IQ of 49.

Through the eighth grade, D.W. attended special, “multi

‐ categorical” classes in which

students with various disabilities are taught together in the same classroom. These classes

were less restrictive than the “self

‐ contained” classes serving only children with cognitive

disabilities.

While D.W. attended eighth grade, a team of educators developed an

“individualized education plan,” or IEP, covering the remainder of her eighth

‐ grade year

and first year of high school. This plan noted that D.W. performed at a first

‐ grade level in

math, a second

‐ grade level in reading and language arts, and about 60 percent of the time

displayed inappropriate behavior, such as refusing to participate or follow instructions. The

plan, which also noted D.W.’s lack of functional and organizational skills, identified the

following goals: advancing D.W.’s math skills to the second

‐ grade level; advancing her

reading, language arts, and writing skills to the third

‐ grade level; and cooperating with

teachers 60 percent of the time. Based on her eighth

‐ grade performance, the IEP team

doubted that D.W. would succeed in a multi

‐ categorical classroom in ninth grade, but they

acquiesced to her parents’ strong preference that she attend a multi

‐ categorical class that

would keep her on track to receive a high school diploma.

D.W. struggled in the ninth grade at Rufus King High School, where she received Ds

and Us (for “unsatisfactory”) in most of her subjects and frequently refused to participate in

class. After reviewing her first ninth

‐ grade progress report, D.W.’s parents met with her IEP

team, which prepared a behavioral intervention plan to address D.W.’s refusal to

participate. Under this plan, D.W. would receive several hours of one

‐ on

‐ one instruction

per day, extra time for tests, modifications to her assignments, and daily progress reports.

When her performance still did not improve, her parents again met with the IEP team,

which recommended that D.W. be placed in a special class for students with cognitive

disabilities at Riverside High School. But because D.W.’s parents opposed the move, the

team tried modifying her behavior and education plans by providing her with classwork at

her instructional level, seating her near the teacher, and providing positive feedback. When

D.W. still did not show improvement, the team concluded that she should attend the self

‐

contained cognitive disability class for the next school year.

D.W.’s parents then requested a due process hearing from the Department of Public

Instruction, see W IS

. S TAT

. § 115.80(1)(a); 20 U.S.C. § 1415(f)(1)(a), claiming that MPS had

failed to provide their daughter with a free, appropriate public education. They alleged that

MPS had violated provisions of the IDEA requiring it to develop and follow an IEP suited to

D.W.’s needs and to educate D.W. in the least restrictive environment possible. See 20 U.S.C.

§ 1412(a)(4)–(5). They also maintained that the behavioral components of D.W.’s IEP were illNo. 12

‐ 2880 Page 3

considered and that teachers had failed to prepare the daily reports and make the

accommodations called for under the IEP.

After a hearing before the Wisconsin Division of Hearings and Appeals at which

both parties were represented by counsel, an administrative law judge determined that

D.W.’s parents had failed to establish that her IEP was inappropriate or improperly

implemented or that Riverside’s self

‐ contained cognitive

‐ disability class would be more

restrictive than necessary. The ALJ declined to find fault with D.W.’s behavioral

‐

intervention plan, pointing out that the IDEA does not specify any substantive requirements

for such plans. He also noted that D.W.’s parents presented little evidence beyond her poor

grades to suggest that her teachers had not followed the IEP. Because D.W.’s grades were

based on objective criteria applied to all ninth

‐ grade students, the ALJ explained that they

were not relevant to her teachers’ efforts to help her reach her IEP goals.

D.W.’s parents sought review of the ALJ’s decision in Wisconsin state court, and

MPS removed the case to federal court based on federal question jurisdiction. In the district

court, D.W.’s parents moved to introduce additional evidence, including report cards and

class work, which they said showed that “the facts the school district relied upon for its

placement decision, and the facts the Administrative Law Judge relied upon for his decision

have significantly changed.” The court denied that motion on grounds that D.W.’s parents

had failed to explain why the evidence (much of which predated the ALJ’s decision) was

not presented at the administrative level or how it would otherwise be probative.

The district court then granted summary judgment for MPS, finding that the ALJ’s

decision was supported by a preponderance of the evidence. The district court reiterated

that the IDEA does not include substantive requirements for behavioral

‐ intervention plans.

The court also noted that although there was little evidence about whether D.W.’s teachers

had prepared progress reports, her parents bore the burden of proof on this issue—and

D.W.’s parents had identified no evidence apart from her poor grades to suggest that her

teachers had not implemented her IEP.

In this appeal, D.W.’s parents assert that she has been denied a free, appropriate

public education and maintain that D.W. should be returned to Rufus King High School,

where she can earn a high school diploma. They principally challenge the district court’s

decision to uphold the ALJ’s conclusions that D.W.’s education plan was appropriate and

that her teachers complied with it. They continue to hold up D.W.’s failing grades as

evidence that her teachers failed to teach at her instructional level as required by her IEP.

The initial question in this court is whether there is an ongoing controversy between

the parties. The dispute concerns past school years, which poses the question whether theNo. 12

‐ 2880 Page 4

case has become moot. D.W.’s parents contend, however, that they would like her returned

from Riverside High School to Rufus King High School, from which she could receive a

regular diploma. The IDEA permits a court to “grant such relief as the court determines is

appropriate.” 20 U.S.C. § 1415(i)(2)(C)(iii). If this court should conclude that defendants

violated the statute by transferring D.W. to the program at Riverside, it could in principle

order her return to Rufus King. See Burlington School Committee v. Massachusetts Department

of Education

, 471 U.S. 359, 370 (1985). This potential remedy demonstrates that a

constitutional case or controversy still exists, so we address the appeal on the merits.

The district court did not commit a clear error. As both the ALJ and the district judge

noted, D.W.’s poor grades do not show that her teachers failed to made a good

‐ faith effort

to help her meet the goals in her educational plan. The record does not compel a conclusion

that better work by the teachers would have led to higher grades; indeed, the record does

not compel a conclusion that the teachers’ work fell short.

The parents contend that the educational plan should have included “assistive

technology,” see 20 U.S.C. § 1414(d)(3)(B)(v), but they do not tell us what devices or software

that would have entailed. Indeed, they did not present this contention to the ALJ, so it has

been forfeited. It was not properly before the district court and has not been preserved for

decision in this court. See 28 U.S.C. § 1415(i)(2)(A); Family & Children’s Center v. School City of

Mishawaka

, 13 F.3d 1052, 1056 (7th Cir. 1994). We therefore do not discuss this subject

further.

D.W.’s parents also assert that the cognitive

‐ disability class at Riverside High School

is more restrictive than necessary, and they highlight the nonacademic benefits of educating

disabled students in mainstream classrooms. But although schools must educate disabled

students with their nondisabled peers to the “maximum extent appropriate,” 20 U.S.C.

§ 1412(a)(5)(A), a student challenging a placement as unduly restrictive must do more than

show that she is obtaining some benefit from mainstream classes. See Bd. of Educ. of Twp.

High Sch. Dist. No. 211 v. Ross

, 486 F.3d 267, 277 (7th Cir. 2007); Beth B. v. Van Clay

, 282 F.3d

493, 499 (7th Cir. 2002). The relevant inquiry is whether the student’s education in the

mainstream environment was “satisfactory” (or could be made satisfactory through

reasonable measures), see Ross

, 486 F.3d at 277. In light of the opinions from D.W.’s IEP team

that she could not learn satisfactorily in the multi

‐ categorical classroom, the district court

did not err in finding that the record supported the ALJ’s decision.

D.W.’s parents also suggest that the district judge violated due process by reviewing

(and, they say, relying on) two filings (a response to D.W.’s brief on the merits and a

submission opposing the introduction of additional evidence) that MPS inadvertently failed

to serve on them. But D.W.’s parents have not explained how they have been prejudiced byNo. 12

‐ 2880 Page 5

this slip

‐ up. Ex parte contacts with the district court violate due process only if they “render

it impossible for the district court to fairly consider a plaintiff’s arguments, or are not made

a matter of record in the case and do not provide an opportunity for a plaintiff to respond to

them.” Vollmer v. Publishers Clearing House

, 248 F.3d 698, 710 (7th Cir. 2001). Here, the

district court entered the briefs on its docket and allowed the plaintiffs to respond to them,

curing any potential prejudice. Id.

D.W.’s parents also generally assert that the district court abused its discretion by

denying their motions to consider new evidence and to supplement the record. But the

plaintiffs make this argument without elaboration or citation to authority and have

therefore waived the issue. See Ajayi v. Aramark Business Servs., Inc

, 336 F.3d 520, 529 (7th

Cir. 2003). And regardless, because they did not explain their failure to introduce their

additional evidence at the due

‐ process hearing, the district court did not abuse its discretion

in declining to consider the documents. See Monticello Sch. Dist. No. 25 v. George L.

, 102 F.3d

895, 902 (7th Cir. 1996).

AFFIRMED