School Dist WI Dells v. Z.S. , 295 F.3d 671 ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3720
SCHOOL DISTRICT OF WISCONSIN DELLS,
Plaintiff-Appellee, Counterclaim-Defendant-Appellee,
v.
Z.S., by and through his grandparent
and guardian, JUDITH LITTLEGEORGE,
Defendant-Appellant,
and
JUDITH LITTLEGEORGE,
Counterclaimant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
Nos. 00 C 619, 00 C 662—Barbara B. Crabb, Chief Judge.
____________
ARGUED APRIL 2, 2002—DECIDED JUNE 28, 2002
____________
Before POSNER, MANION, and KANNE, Circuit Judges.
POSNER, Circuit Judge. The Individuals with Disabilities
Education Act entitles a disabled child to a “free appropri-
ate public education” tailored to his disability, 20 U.S.C.
§§ 1400(d)(1)(A), 1412(a)(1)(A); Cedar Rapids Community
2 No. 01-3720
School District v. Garret F. ex rel. Charlene F., 526 U.S. 66, 68
(1999); Morton Community Unit School District No. 709 v.
J.M., 152 F.3d 583, 583-84 (7th Cir. 1998), and expresses a
strong preference for “mainstreaming” (the statutory term
is “least restrictive environment,” § 1412(a)(5); Beth B. v. Van
Clay, 282 F.3d 493, 497 (7th Cir. 2002)), that is, for educat-
ing the disabled child in classes with nondisabled children
rather than in special classes or at home. § 1412(a)(5)(A);
Board of Education v. Rowley, 458 U.S. 176, 202-03 and n. 24
(1982); Rome School Committee v. Mrs. B., 247 F.3d 29, 33
(1st Cir. 2001). Efficacy is relevant, obviously, but so is cost,
Hartmann by Hartmann v. Loudoun County Board of Education,
118 F.3d 996, 1004-05 (4th Cir. 1997); Seattle School District,
No. 1 v. B.S., 82 F.3d 1493, 1500 (9th Cir. 1996), including the
disruptive impact on other children when, as in this case,
a disability causes antisocial behavior. Oberti by Oberti v.
Board of Education, 995 F.2d 1204, 1217 (3d Cir. 1993); Greer
By & Through Greer v. Rome City School District, 950 F.2d 688,
697 (1991), withdrawn, 956 F.2d 1025, reinstated, 967 F.2d
470 (11th Cir. 1992) (per curiam); Daniel R.R. v. State Board of
Education, 874 F.2d 1036, 1048-50 (5th Cir. 1989). For a good
summary see Murray By & Through Murray v. Montrose
County School District RE-1J, 51 F.3d 921, 926-27 n. 10 (10th
Cir. 1995).
Z.S. has symptoms characteristic of autism. As a kinder-
gartener he displayed abnormally aggressive behavior and
it worsened as the years passed. He would kick, hit, and
bite students, teachers, and teachers’ aides, and when he
was not having outbursts he would be depressed and with-
drawn. His basic problem was inability to function in a so-
cial setting or indeed in any setting that was not highly
structured; any sudden movement, any disruption of
routine, set him off. He also displayed abnormal sensitivity
to touch and sound, another symptom of autism. American
Psychiatric Association, Diagnostic and Statistical Manual of
No. 01-3720 3
Mental Disorders, Text Revision 70-72 (4th ed. 2000); T. Peeters
& C. Gillberg, Autism: Medical and Educational Aspects 27, 29
(2d ed. 1999). He received various medications and special
educational assistance, all it seems to little or no avail. At
any rate he got progressively worse; and in 1999, when
he was 10, he was placed in a residential mental health
facility (Mendota) which included a school. He did pretty
well there, and the staff suggested that he be returned to
a regular public school for the 1999-2000 school year. They
thought—erroneously, as it turned out—that his experience
at Mendota was the kind of transition he had needed to a
regular public school. An Individualized Education Pro-
gram (required by IDEA; see 20 U.S.C. § 1414(d)(1)(A)) was
prepared for him. It called for him to spend 70 percent of
his school time when he returned to public school in regu-
lar classes and the other 30 percent in special-education
classes; a special-education program assistant would be
present to help him in all his classes although not assigned
specifically to him. The program failed; when he returned
to public school he was disruptive, violent (the police had
to be called on one occasion), and truant. After a few weeks
of this, he was placed in another specialized school, called
SCAN, which was not, however, residential like Mendota.
He was totally unmanageable in SCAN, and was removed
after less than a month. He had done better at Mendota, but
his guardian (his grandmother: his father has disappeared
and his mother, a drug addict, is unable to care for the
child) did not want him sent back there. She wanted him
sent back to the regular school but with an aide assigned
to him full time to keep him under control. The school dis-
trict, afraid that sending Z.S. back to school might irrepara-
bly damage the prospects of his ever being able to get along
with other children, chose instead, after canvassing other
alternatives, a program of homebound instruction for him.
(It took the district a month to decide on this, during which
4 No. 01-3720
time Z.S. was at home with no instruction.) It hired a retired
special-education teacher to teach him for six hours a week
at home, and an occupational therapist to give him another
hour’s instruction each week, in the hope that after a while
it would be possible for him to return to school. This con-
tinued until the end of the 1999-2000 school year. His sub-
sequent experiences are not a part of the record.
The IDEA is enforced in the first instance in state adminis-
trative proceedings. An administrative law judge found
that Z.S. had, in the 1999-2000 school year, been denied
the free appropriate public education to which the Act
entitled the child. He found that the school district had
failed to diagnose Z.S. as autistic, should not have needed
a month to create a new educational program for him after
he was removed from SCAN, and shouldn’t have placed
him in a “restrictive” environment (namely his home) with-
out giving more consideration to the possibility of “main-
streaming” him, perhaps returning him to a regular public
school but assigning a full-time (“one on one”) aide to
attend him throughout the school day. The school district
sought judicial review in federal district court (Wisconsin
has a one-tier rather than the more common two-tier sys-
tem for administrative review of IDEA claims, see 20
U.S.C. §§ 1415(g), (i)(2); Wis. Stat. § 115.80; compare 105
ILCS §§ 5/14-8.02(h)-(i)), which reversed the administra-
tive law judge, 184 F. Supp. 2d 860 (W.D. Wis. 2001), pre-
cipitating this appeal by Z.S.’s guardian on his behalf. The
guardian’s counterclaim in the district court was for attor-
neys’ fees, to which of course she is not entitled if the
judgment in favor of the school district stands.
She argues, to begin with, that the district judge failed to
give the administrative law judge’s decision the proper
deference. Just how much deference that is is unclear. In
ordinary cases of judicial review of administrative action,
No. 01-3720 5
if no pure issues of law (on which judicial review is ple-
nary) are involved except ones the resolution of which the
Chevron doctrine commits to the agency, the court must
defer to the agency’s decision if the decision is supported
by “substantial evidence.” Some of our cases say—realisti-
cally—that this is the same standard as clear error. Thomas
v. Chicago Park District, 227 F.3d 921, 926 (7th Cir. 2000),
aff’d on other grounds, 534 U.S. 316 (2002); United States
v. Hill, 196 F.3d 806, 808 (7th Cir. 1999); Johnson v. Trigg,
28 F.3d 639, 643-44 (7th Cir. 1994); cf. Ingram v. ACandS,
Inc., 977 F.2d 1332, 1340 (9th Cir. 1992). Aegerter v. City
of Delafield, 174 F.3d 886, 890 (7th Cir. 1999), says that “it
is possible, though not always easy,” to distinguish among
the canonical standards of review, such as substantial evi-
dence and clear error, noting that “this court has expressed
skepticism in the past about the ability of judges to apply
more than a few standards of review,” id. at 889, citing
United States v. Boyd, 55 F.3d 239, 242 (7th Cir. 1995).
“Realistically” is the key qualification. The Supreme Court
has said that “the court/agency standard [substantial evi-
dence] . . . is somewhat less strict than the court/court
standard [clear error]. But the difference is a subtle one—so
fine that (apart from the present case) we have failed to
uncover a single instance in which a reviewing court con-
ceded that use of one standard rather than the other would
in fact have produced a different outcome.” Dickinson v.
Zurko, 527 U.S. 150, 162-63 (1999), quoted in CAE, Inc. v.
Clean Air Engineering, Inc., 267 F.3d 660, 676 and n. 10 (7th
Cir. 2001). The courts that think the difference percepti-
ble cannot, despite the passage we have just quoted from
the Supreme Court’s decision in Zurko, agree on which is
the more searching standard; an illustrative comparison
is between In re Zurko, 258 F.3d 1379, 1384 (Fed. Cir. 2001)
(substantial evidence less searching than clear error), with
Aruta v. INS, 80 F.3d 1389, 1393 (9th Cir. 1996) (substantial
6 No. 01-3720
evidence more searching than clear error), and General
Electro Music Corp. v. Samick Music Corp., 19 F.3d 1405, 1408
(Fed. Cir. 1994) (ditto). If the difference in standards were
material, courts would know which way the difference cut
and would be able to identify cases in which the choice of
standard had determined the outcome.
Defenders of the difference will point out that administra-
tive proceedings often involve technical issues on which
the agency is expert and the reviewing court is not. But
court cases often involve issues on which the trial judge
has an equally great advantage over the reviewing court—
the factual issues may be esoteric ones that the judge
was able to immerse himself in and the reviewing court,
which has limited exposure to a case, was not. So it is not
obvious that a blanket distinction between the standard for
review of agency findings and the standard for review
of judicial findings is warranted, and in any event the
cognitive limitations that judges share with other mortals
may constitute an insuperable obstacle to making distinc-
tions any finer than that of plenary versus deferential re-
view. See Reynolds v. City of Chicago, No. 00-3771, slip op. at
4, 2002 WL 1354689, at *2 (7th Cir. June 21, 2002). Maybe in
judicial review two’s a company and three’s a crowd.
But here we must note a difference between the question-
able judicial attempt to multiply standards of review and
the unavoidable heterogeneity in the application of a giv-
en standard across the full range of cases governed by it.
Even if the different formulations of deferential review
(substantial evidence, clear error, abuse of discretion, etc.)
amount to the same thing—a proposition that we are
entertaining as a hypothesis, not asserting as a rule for the
circuit—the actual amount of deference given the finding of
a lower court or an agency will often depend on the nature
No. 01-3720 7
of the issue. We mentioned technical issues. The more tech-
nical the issue resolved by the agency, the less likely the
reviewing court is to feel comfortable second-guessing the
agency’s resolution. As a practical matter, having nothing to
do with the precise articulation of the standard of review,
the agency’s finding will receive greater judicial respect in
such a case.
The distinction between standards of review and the
application of a given standard in different cases affects
judicial review of administrative decisions under IDEA. The
reason is that the statute authorizes the district court to
receive and consider new evidence, that is, evidence that
was not before the administrative law judge, and to reverse
his decision if it is contrary to the “preponderance of the
evidence.” 20 U.S.C. § 1415(i)(2)(B). Both the receipt of evi-
dence by the reviewing court and the preponderance stan-
dard of proof are features alien to ordinary judicial review
of administrative action, though related to each other. As
we explained in Dale M. ex rel. Alice M. v. Board of Education,
237 F.3d 813, 815-16 (7th Cir. 2001), consistent with the
discussion in the preceding paragraph of this opinion, a
reviewing court that has before it evidence not considered
at the administrative level will naturally defer less to the
administrative decision, as it has an information advantage
over the administrator that it lacks when judicial review is
limited to the record that was before him. Judicial review is
more searching the greater the amount (weighted by sig-
nificance) of the evidence that the court has but the agency
did not have. Id. at 816; Kerkam v. McKenzie, 862 F.2d 884,
887 (D.C. Cir. 1988); Ojai Unified School District v. Jackson,
4 F.3d 1467, 1471-72 (9th Cir. 1993).
We are near the bottom of this sliding scale in the present
case. The school district, the loser at the administrative level,
did put in evidence that had not been introduced at that
8 No. 01-3720
level, and Z.S. did not. But that evidence seems not to have
played a significant role in the district court’s decision. The
only bit of it that the court considered was school records
“that relate to Z.S.’s Individualized Education Programs
before the 1999-2000 school year,” 184 F. Supp. 2d at 874,
and it appears from the administrative law judge’s opinion
that he had before him most of the information contained
in the records. Since it thus was essentially a no-new-evi-
dence case, the district judge owed the administrative law
judge’s decision the usual deference that reviewing courts
owe agencies when judicial review is limited to the adminis-
trative record. See Dale M. ex rel. Alice M. v. Board of Educa-
tion, 237 F.3d at 815-16; Morton Community Unit School
District No. 709 v. J.M. , supra, 152 F.3d at 587-88. When no
fresh evidence is taken, “the fact that [the district judge]
disagrees with the [administrative law judge or other ad-
ministrative hearing] officer is not enough to justify set-
ting aside the latter’s order; he must be strongly convinced
that the order is erroneous . . . . [H]e owes considerable
deference to the reviewing officer.” Dale M. ex rel. Alice M.
v. Board of Education, supra, 237 F.3d at 815-16; see also
Patricia P. v. Board of Education, 203 F.3d 462, 466-67 (7th Cir.
2000). This is just another way of stating the clear-error or
substantial-evidence standard. For there is no magic in the
particular words used.
The district judge’s opinion contains language which
suggests that she did the forbidden and, despite not having
taken material new evidence, made an “independent” deter-
mination that the school district had not violated the IDEA.
Nevertheless, if she did apply the wrong standard of review
(more likely the statement that she had made an “inde-
pendent” determination was just a slip of the pen, cf. Lenn
v. Portland School Committee, 998 F.2d 1083, 1087-89 (1st
Cir. 1993)), it was a harmless error. Winner Int’l Royalty Corp.
v. Wang, 202 F.3d 1340, 1347 and n. 5 (Fed. Cir. 2000); Perdue
No. 01-3720 9
v. Burger King Corp., 7 F.3d 1251, 1254 (5th Cir. 1993); Blizard
v. Fielding, 572 F.2d 13, 15-16 (1st Cir. 1978). The administra-
tive law judge’s decision could not survive even the def-
erential review to which it was entitled. The critical issue
before him was whether the school administrators were un-
reasonable (Board of Education v. Rowley, supra, 458 U.S.
at 206-07) in thinking it would be a mistake to send Z.S.
back to his regular public school to take regular school
classes. The one-month delay in figuring out what to do
with Z.S. after he had to be removed from SCAN, much
harped on by Z.S.’s guardian, was reasonable—everyone
was at his or her wit’s end about what to do with this un-
fortunate child—given the need, emphasized by the guard-
ian herself and a statutory requirement to boot, see 20
U.S.C. § 1414(d)(1)(B), for a consultative process to decide
what to do with him.
In light of Z.S.’s disastrous history of attending regular,
or indeed any, classes in any school environment less struc-
tured than that of the mental institution in which he had
been confined for seven months (Mendota), and in light
of the failure of his spell at Mendota to provide the transi-
tion back to public school that the school administra-
tors had thought it would, there was no basis for believing
that, after he had to be removed from SCAN, he could func-
tion successfully in a regular school environment. What
could even a full-time teacher’s aide have done to re-
strain this wild child when he started kicking and biting
people, tearing his clothes, breaking furniture, and other-
wise acting out as he had been doing for years, with no
sign of improvement, and as he could be expected to con-
tinue doing if placed in any environment less restrictive
than that of Mendota? The school administrators could
not reasonably be thought unreasonable to reject this solu-
tion in favor of a spell of instruction at home. The desire of
Z.S.’s guardian not to have this difficult child at home
10 No. 01-3720
all day was entirely understandable but could not be al-
lowed to sway the balance. The administrative law judge,
playing amateur physician, devoted much of his analysis
to insisting that Z.S. is indeed autistic, rather than merely
severely disturbed, as the school administrators believed.
These are just labels, in the absence of any evidence that
a formal diagnosis of autism would show that it was un-
reasonable not to return Z.S. to public school in 1999
with a full-time attendant, a kind of living straitjacket, at
his side.
Administrative law judges in Wisconsin who hear IDEA
cases are, we grant, specialists, see Wis. Admin. Code § PI
11.12(2), and are not required to accept supinely whatever
school officials testify to. Heather S. By Kathy S. v. Wisconsin,
125 F.3d 1045, 1053 (7th Cir. 1997); Board of Education
of Murphysboro Community Unit School District No. 186 v.
Illinois State Board of Education, 41 F.3d 1162, 1167 (7th Cir.
1994). But they have to give that testimony due weight.
“Autism experts have a variety of opinions about which
type of program is best. Federal courts must defer to the
judgment of education experts who craft and review a
child’s IEP so long as the child receives some educational
benefit and is educated alongside his non-disabled class-
mates to the maximum extent possible.” Gill v. Columbia 93
School District, 217 F.3d 1027, 1038 (8th Cir. 2000); see also
Tice By & Through Tice v. Botetourt County School Board, 908
F.2d 1200, 1207 (4th Cir. 1990); Karl by Karl v. Board of
Education of Geneseo Central School District, 736 F.2d 873, 876
(2d Cir. 1984). A particular Individualized Education Pro-
gram, to survive administrative review, such as the one that
decreed the program of home instruction challenged by
Z.S.’s guardian, need only be “reasonably calculated to en-
able the child to receive educational benefits.” Board of
Education v. Rowley, supra, 458 U.S. at 206-07 (emphasis
added); Patricia P. v. Board of Education, supra, 203 F.3d at
No. 01-3720 11
467; School Board of Collier County v. K.C., 285 F.3d 977, 982
(11th Cir. 2002); Rome School Committee v. Mrs. B., supra,
247 F.3d at 33. The administrative law judge substituted
his own opinion for that of the school administrators. He
thought them mistaken, and they may have been; but they
were not unreasonable.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—6-28-02