                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           June 6, 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    T.W., by and through his parents,
    Madeline McCullough and Michael
    Wilson,
                                                        No. 04-3093
                Plaintiff-Appellant,             (D.C. No. 01-CV-1406-MLB)
                                                           (D. Kan.)
    v.

    UNIFIED SCHOOL DISTRICT NO.
    259, WICHITA, KANSAS,

                Defendant-Appellee.


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      This order and judgment is not binding precedent, except under the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



1
       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.

                                         -2-
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.

                                            -3-
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

resemblance 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


                                         -4-
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 self-

contained classroom.

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

IEP was developed. After the IEP team recommended placement in a self-

contained 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 (FAPE); 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.




                                         -5-
      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-1J      , 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. K.B. v. Nebo Sch. Dist.   , 379 F.3d




                                          -6-
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 novo trial.” Id. 3

       This court reviews the district court’s disposition        de novo , 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 novo 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 novo .” 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



3
       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. Plaintiff’s challenges fail to overcome the presumption of
correctness attached to the IHO’s factual findings, which are generally supported
by the record.

                                              -7-
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.1 (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 self-

contained 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).

                                            -8-
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. , 379 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:

       (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.

Id.



                                            -9-
             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

regular 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.


                                          -10-
       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 plaintiff’s 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 ¶ 42, 1044

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

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

¶ 281; Vol. IV at 1445-47; Vol. V at 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


                                           -11-
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. V at 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


                                        -12-
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 Bd. 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 ¶ 31, 1040 ¶ 49, 1044 ¶ 67, 1049


                                            -13-
¶ 84, 1050 ¶ 90, 1051 ¶ 98, 1054 ¶ 114; Vol. IV at 1375, 1404, 1417-19, 1454-55;

Vol. V at 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 in-

service 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


                                         -14-
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 2381.

                                           -15-
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. V at 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




                                           -16-
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. V at 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 ¶ 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


                                            -17-
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. V at 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.

       With or without specific modification or adaptation, there were many

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

V at 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. V at 1522,

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

modified, id. , Vol. V at 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


                                            -18-
      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 FAPE 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.




                                          -19-
       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

IHO, 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

targets 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 ¶ 233. Susan Rothwell, who teaches the self-contained classroom


                                           -20-
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 pre-

reading skills.”   Id. ¶ 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. V at 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-on-

one pullout sessions with his related service providers.


                                           -21-
              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. V at 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.


                                             -22-
App., Vol. III at 1083 ¶ 237. 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 1039 ¶ 44, 1043 ¶ 61, 1047 ¶ 77, 1053

¶ 109, 1055 ¶ 119, 1065 ¶ 163, 1069 ¶¶ 181-82, 1080-81 ¶ 228, 1088 ¶ 261. 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)(1)(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.W.’s teachers and the adaptations made to the curriculum for him.     6
                                                                            There is no


6
        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...)

                                          -23-
merit to plaintiff’s contention that these alleged failures denied him a FAPE.

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.].”).

                                         -24-
contacts because she was unsure of the appropriate district protocols.       See Aplt.

App., Vol. V at 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

¶ 155; Vol. V at 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


                                           -25-
Ms. Mhate prepared goals and objectives that could be served in either a self-

contained 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

be. “ 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

blank 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


                                           -26-
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.




                                            -27-
                                 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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