Hjortness, Joel v. Neenah Joint School ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3044
JOEL HJORTNESS, A MINOR, BY AND THROUGH HIS
PARENTS AND LEGAL GUARDIANS ERIC HJORTNESS
AND GAIL HJORTNESS, ERIC HJORTNESS, AND
GAIL HJORTNESS,
Plaintiffs-Appellants,
v.
NEENAH JOINT SCHOOL DISTRICT,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
Nos. 05 C 648, 05 C 656—William C. Griesbach, Judge.
____________
ARGUED JANUARY 18, 2007—DECIDED AUGUST 20, 2007
____________
Before BAUER, MANION, and ROVNER, Circuit Judges.
BAUER, Circuit Judge. Joel Hjortness and his parents
brought a due process claim against the Neenah Joint
School District (“the school district”) for denying Joel a
“free appropriate public education,” in violation of the
Individuals with Disabilities and Education Act (“IDEA”)
20 U.S.C. § 1415. An administrative law judge (“ALJ”)
found in favor of the Hjortnesses, and the district court
reversed by granting the school district’s motion for
summary judgment. We affirm.
2 No. 06-3044
I. Background
Joel has been diagnosed at various times with obsessive
compulsive disorder, Tourette’s disorder, attention defi-
cit/hyperactivity disorder, autistic spectrum disorder,
oppositional defiant disorder, and anxiety disorder.
Despite these disorders, he is exceptionally bright with an
IQ of 140.
Until May 2003, Joel attended public school at Shattuck
Middle School in the Neenah Joint School District,1 where
he and his parents resided. In May 2003, Joel’s parents
withdrew him from Shattuck because they believed that
the school district was not adequately addressing his
behavioral needs. His parents enrolled him in private
school: first, at the Kennan Academy in Menasha, Wiscon-
sin until January 2004, and thereafter as a residential
student at the Sonia Shankman Orthogenic School
(“SSOS”) in Chicago, Illinois.
In November 2003, the school district began its pro-
cess of reevaluating Joel, as required by law. The school
district planned to gather data and then to meet with
Joel’s parents to develop an individualized education plan
(“IEP”) for Joel. On March 12, 2004, a school psychologist,
an occupational therapist, and an autism resource teacher
from the school district observed Joel at SSOS and inter-
viewed SSOS staff who had worked with him. Based on
this observation and the results of other tests, the team
concluded that Joel met the special education criteria
for autism, other health impairment, and emotional
behavioral disability.
The school district next developed an IEP for Joel. On
April 22, 2004, the school district’s special education
1
At Shattuck, Joel maintained a grade point average of 3.5 as
a regular education student.
No. 06-3044 3
director, a regular education teacher from Neenah High
School and Shattuck Middle School, a special education
teacher from each of these schools, an other health im-
pairment consultant, and the three district staff members
who had visited SSOS, Joel’s mother, and her attorney met
to develop the IEP. At the IEP meeting, the team dis-
cussed Joel’s strengths and weaknesses. The team also
discussed general goals for Joel’s education, which in-
cluded giving Joel instruction in a small group setting.
They identified one specific goal: that Joel would raise
his hand at least 50% of the time when appropriate. No
other specific goals or short-term objectives were iden-
tified at the meeting.
After the IEP meeting, school district staff prepared
Joel’s IEP for May 17, 2004 through May 16, 2005. The
IEP specified four goals: (1) Joel will demonstrate appro-
priate hand raising procedures 50% of the time in class;
(2) Joel will increase his ability to follow directions given
by authority figures by 50%, as measured by a teacher
monitoring system; (3) Joel will increase his ability to
interpret a situation and respond appropriately in 50% of
situations, as measured by a monitoring system; and
(4) Joel will increase his ability to respond appropriately
when in competitive situations 50% of the time, as mea-
sured by a staff monitoring system. Of the four goals, only
the first was explicitly discussed at the IEP meeting. The
remaining goals were identical to the goals in Joel’s
previous IEP, except that the percentages specified were
lower than the percentages identified in the preceding
IEP, and the short term objectives in support of each goal
varied from the short term objectives in the preceding IEP.
On June 18, 2004, Joel’s parents requested a due pro-
cess hearing to seek reimbursement for placing Joel at
SSOS. The ALJ found that the school district complied
with the substantive requirements of the IDEA by pro-
viding Joel with an IEP that was reasonably calculated to
4 No. 06-3044
provide him with some meaningful educational benefit.
The ALJ also found that the school district had committed
a procedural violation of the IDEA because Joel’s IEP was
not substantially developed and the school district had
decided to place Joel in its school before the IEP meeting,
thereby denying him a free appropriate public educa-
tion. As a result, the ALJ ordered the school district to
reimburse the Hjortnesses $26,788.32 for the cost of Joel’s
private school placement. The school district and the
Hjortnesses both appealed this decision to the district
court. The school district moved for summary judgment,
which the district court granted. The Hjortnesses filed
this timely appeal.
II. Discussion
Whether a school district has offered a free appropriate
public education to a disabled student is a mixed question
of law and fact. Heather S. v. State of Wisconsin, 125 F.3d
1045, 1053 (7th Cir. 1997). We review the administra-
tive record and the district court’s findings of fact deferen-
tially, and we review questions of law de novo. Bd. of Educ.
v. Ross, 486 F.3d 267, 270 (7th Cir. 2007).
The IDEA requires that the school district, as a recipient
of federal education funds, provide children with disabili-
ties a free appropriate public education in the least
restrictive environment. Id. at 273. Specifically, the IDEA
provides:
To the maximum extent appropriate, children with
disabilities, including children in public or private
institutions or other care facilities, are educated with
children who are not disabled, and special classes,
separate schooling, or other removal of children with
disabilities from the regular educational environment
occurs only when the nature or severity of the disabil-
No. 06-3044 5
ity of a child is such that education in regular classes
with the use of supplementary aids and services
cannot be achieved satisfactorily.
20 U.S.C. § 1412(a)(5)(A). The IDEA requires that the
state determine what is uniquely “appropriate” for each
child’s education by preparing an IEP developed through
the joint participation of the local education agency, the
teacher, and the parents. An IEP is defined as “a written
statement for each child with a disability that is devel-
oped, reviewed, and revised in accordance with section
1414(d) of this title.” 20 U.S.C. § 1401(14). The statute
assures the parents an active and meaningful role in the
development or modification of their child’s IEP. Ross, 486
F.3d at 274. The statute imposes both a substantive
obligation and a procedural obligation on the state. Id.
at 273-74.
A. Substantive Compliance
The Hjortnesses first assert that Joel’s IEP was substan-
tively inadequate because it failed to fully identify Joel’s
disabilities and his resulting needs, his present levels of
educational performance, and his annual goals and short
term objectives. We disagree.
To be substantively appropriate, the IEP must be
formulated so that Joel would receive the “basic floor of
opportunity [, consisting of] access to specialized instruc-
tion and related services which are individually designed
to provide educational benefit to [him].” Bd. of Educ. v.
Rowley, 458 U.S. 176, 201, 102 S. Ct. 3034, 73 L. Ed. 2d
690 (1982). To accomplish this, the IDEA requires, among
other things, that the IEP include “a statement of the
child’s present levels of educational performance, in-
cluding—(1) how the child’s disability affects the child’s
involvement and progress in the general curriculum. . . .”
20 U.S.C. § 1414(d)(1)(A)(I).
6 No. 06-3044
As the ALJ indicated, considering that medical profes-
sionals have demonstrated difficulty in pinpointing
Joel’s disorders, it is unreasonable to expect the school
district to do better in determining Joel’s predominant or
existing medical disorders. The school district properly
considered the various medical diagnoses and educational
assessments in determining that Joel met the criteria
for autism and other health impairments.
Joel’s “present levels of educational performance” did not
reflect his current performance because current data was
unavailable. Joel had not been attending school at the
school district for almost a year, and SSOS was still in the
process of observing Joel to gain insight on his behaviors.
The school district gathered all the current information
they could—by visiting SSOS, observing Joel, and meet-
ing with his current teachers—and incorporated that
data into his IEP.
Further, the Hjortnesses failed to present any evidence
that Joel would not benefit educationally from the goals in
his IEP. The goals and short terms objectives were tar-
geted to develop his social skills and would have provided
Joel with some meaningful educational benefit. It was
appropriate for the IEP to contain substantially similar
goals and objectives as were contained in the preceding
IEP.
B. Procedural Compliance
The Hjortnesses next assert that Joel’s IEP was proce-
durally inadequate because (1) the IEP was written
without Joel’s parents’ participation in the development of
its goals and objectives, (2) the IEP was written without
an SSOS representative at the IEP meeting, and (3) the
school district made its placement decision before the IEP
was written. We disagree.
No. 06-3044 7
Procedural flaws do not require a finding of a denial of
a free appropriate public education. However, procedural
inadequacies that result in the loss of educational opportu-
nity result in the denial of a free appropriate public
education. Ross, 486 F.3d at 276.
Considerable time was spent in multiple IEP conferences
at which Joel’s parents and their advocate participated. At
several times during these conferences, the team at-
tempted to set specific goals and objectives, but the
Hjortnesses insisted that “the issue on the table [was
whether the school district would] pay for [Joel] to be
at Sonia Shankman where he needs to be.” The school
district arguably should have held a second IEP meeting
to review the goals and objectives that were not discussed
at the meeting. However, this procedural violation does
not rise to the level of a denial of a free appropriate public
education. The record does not support a finding that
Joel’s parents’ rights were in any meaningful way in-
fringed.
The IDEA did not require the school district to have
an SSOS representative at the IEP meeting. A private
school representative is only required to attend the
meeting if the school district placed the child in the private
school, see 34 C.F.R. § 300.349, which was not the case
here. Even though they were not required to do so, the
school district made quite an effort to ensure input from
SSOS. The school district sent a team to SSOS to visit and
interview Joel and his teachers. The school district also
offered Joel’s parents alternative meeting dates in an
effort to allow them to invite SSOS to attend or participate
by telephone. Even the resulting IEP included data from
past evaluations, current observations, and teacher data
that was supplied by SSOS. The school district also
repeatedly offered to reconvene the meeting once more
data from SSOS was available.
8 No. 06-3044
Finally, we turn to the appellants’ main challenge—that
the school district denied Joel a free appropriate public
education because it predetermined Joel’s placement. The
ALJ found that the school district made its decision to
place Joel in public school before the IEP was written.
However, the IDEA requires that the school district
educate Joel with his nondisabled peers to the “greatest
extent appropriate.” 20 U.S.C. § 1412(a)(5)(A). Recognizing
that we owe great deference to the ALJ’s factual findings,
we find that the IDEA actually required that the
school district assume public placement for Joel. Thus,
the school district did not need to consider private place-
ment once it determined that public placement was
appropriate.
We find that the district court did not err in finding that
the IEP was reasonably calculated to provide Joel with
some meaningful education benefit and that the school
district did not deny Joel a free appropriate public educa-
tion.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of
the district court.
ROVNER, Circuit Judge, dissenting. With respect,
I believe that two procedural flaws in the IEP process
compel reversal of the judgment. The ALJ found that
before school officials met with Mrs. Hjortness to begin
discussing the 2004-05 IEP, the school district already
No. 06-3044 9
had “made up its mind to place the Student in a small
group setting in the District schools under whatever IEP
was formulated.” R. 1 at 24; id. at 16 ¶ 32; see also id. at
23. The ALJ also found that most of the goals and short-
term objectives incorporated into the IEP were deter-
mined after the April 22, 2004 meeting attended by Joel’s
mother and therefore were arrived at without the parents’
input. Id. at 16 ¶¶ 33-35; id. at 23. Neither of these factual
findings was clearly erroneous, and together they amply
support the ALJ’s conclusion that Joel’s parents were
deprived of meaningful participation in the IEP process
and that Joel was deprived of a free appropriate public
education.
The IDEA’s presumption in favor of educating a dis-
abled student with his nondisabled peers (see ante at 8,
citing 20 U.S.C. § 1412(a)(5)(A)) does not permit a school
district to circumvent the procedures that Congress has
mandated by predetermining that a disabled student
should be placed in one of its own schools. A placement
decision is to be based on the IEP. 34 C.F.R.
§ 300.116(b)(2) (formerly § 300.552). The IEP is the
“primary vehicle” for implementing the underlying goals
of the statute. Honig v. Doe, 484 U.S. 305, 311, 108 S. Ct.
592, 597 (1988). It is the IEP that assesses the student’s
current educational performance, articulates a set of
annual goals and short-term objectives in furtherance of
those goals, and identifies the special education and other
services necessary to help the student achieve those goals.
20 U.S.C. § 1414(d)(1)(A); Honig, 484 U.S. at 311, 108 S.
Ct. at 597-98. A placement decision that is made before the
IEP is drafted renders what Congress meant to be “the
centerpiece of the statute’s education delivery system for
disabled children,” id. at 311, 108 S. Ct. at 598, a meaning-
less formality. See, e.g., Deal v. Hamilton County Bd. of
Educ., 392 F.3d 840, 859 (6th Cir. 2004); Spielberg v.
10 No. 06-3044
Henrico County Public Schools, 853 F.2d 256, 259 (4th Cir.
1988).
Likewise, an IEP that is drafted largely in the absence
of a student’s parents is not the product of the interactive
process that Congress required. See, e.g., W.G. v. Bd. of
Trustees of Target Range School Dist. No. 23, 960 F.2d
1479, 1485 (9th Cir. 1992). The fact that Joel’s parents
were involved in the process prior to the development of
the IEP (see ante at 7) is beside the point. The fact is, they
were not actually involved in preparing the IEP, nor was
the full IEP team reconvened for the parents’ input once
school officials had completed the plan. It is no answer to
say that Joel’s parents did not object to the ex parte
drafting of the IEP once it was presented to them. See R.
33 at 14. That was not their burden. See W.G., 960 F.3d
at 1485. As the ALJ rightly observed, “it was the obliga-
tion of the District to recognize the procedural flaw[ ] and
offer the Parents the opportunity to participate mean-
ingfully in the development of the annual goals and
objectives, and thereafter to discuss placement under the
IEP as then appropriately developed.” R. 1 at 23.
Because the procedure followed by the school district
in this case was inconsistent with the core goals and
requirements of the IDEA, I would reverse the district
court’s judgment and sustain the ALJ’s determination
that Joel’s parents are entitled to reimbursement for
the tuition they paid for Joel’s private education in the
2004-05 school year.
I respectfully dissent.
No. 06-3044 11
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-20-07