                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-1182
                                    ___________

Geoffrey Ryan Stringer;              *
Robin Charee Christopher,            *
                                     *
            Appellants,              * Appeal from the United States
                                     * District Court for the
       v.                            * Eastern District of Missouri.
                                     *
St. James R-1 School District;       *
Missouri Department of Elementary    *
and Secondary Education,             *
                                     *
            Appellees.               *
                                ___________

                              Submitted: December 14, 2005
                                 Filed: May 3, 2006
                                  ___________

Before MELLOY, COLLOTON, and BENTON, Circuit Judges.
                          ___________

BENTON, Circuit Judge.

       Plaintiffs Geoffrey Ryan Stringer and his mother, Robin Charee Christopher,
sued pro se the St. James R-1 School District and the Missouri Department of
Elementary and Secondary Education (DESE), seeking review of an administrative
panel's decision. The district court1 dismissed for failure to state a claim upon which


      1
       The Honorable Stephen N. Limbaugh, Sr., United States District Judge for the
Eastern District of Missouri.
relief can be granted. Plaintiffs appeal. Having jurisdiction under 28 U.S.C. § 1291,
this court affirms.

                                          I.

      Plaintiffs objected to the District's compliance with the Individuals with
Disabilities Education Act (IDEA). They invoked their due process rights under 29
U.S.C 1415(f)(1). DESE convened a three-member panel to hear the case. See Mo.
Rev. Stat. § 162.961(3). The panel ruled against plaintiffs on all claims, specifically
determining that among issues not within the IDEA were: "Violation of Right to be
in a controlled and disciplined classroom free from harassment during/per IEP
placement and meetings."

       Plaintiffs sued in federal district court, listing "IDEA 34 CRF 300.512" as the
sole ground for filing the case in Federal Court. The complaint listed 13 claims, in
this format:

                 1. Denied FAPE to Geoffrey Stringer
                 2. Denied/violation of Benefit of Education and the Right
                   thereof
Mr. Bailey staff 3. Sexual harassment & other harassment severe persistent pervasive
                 4. Violated civil rights
                 5. Conspiracy by school officials of my son
                 6. Violated written notice
                 7. Deliberate indifference by DESE and St. James R-I District.
                   (harassment & sexual harassment, due process right)
                 8. Deliberate retaliation
                 9. Deliberate blocking and harassment of Due Process Right
                10. Violation of Right to parental & student access to Electronic
                    Verbatim Record of tape witness, to Due Process by District, &
                    panel members (DESE) of Due Process
                11. Failure of St. James R-I "Failure to train" teachers of Geoffs
                   IEP and permission to see counselor & the refuge thereof


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                12. Stalking by Mr. Bailey of Geoffrey Stringer
                13. Breech of confidentiality by DESE & District & refusal &
                    failure to remedy

       The District and DESE moved to dismiss under Fed. R. Civ. P. 12(b)(6). The
court found that 8 of the 13 claims were not properly brought under the IDEA. Of the
remaining 5 claims, the district court determined that plaintiffs failed to state a claim
upon which relief can be granted because they pled only conclusions with no specific
facts.

        This court reviews de novo a district court's decision to dismiss for failure to
state a claim upon which relief can be granted. Abels v. Farmers Commodities Corp.,
259 F.3d 910, 916 (8th Cir. 2001). "[D]ismissal under Rule 12(b)(6) serves to
eliminate actions which are fatally flawed in their legal premises and designed to fail,
thereby sparing litigants the burden of unnecessary pretrial and trial activity." Young
v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001); see also Neitzke v. Williams,
490 U.S. 319, 326-27 (1989). This court will dismiss "only if it is clear that no relief
can be granted under any set of facts that could be proven consistent with the
allegations." Casino Res. Corp. v. Harrah's Entm't ,Inc., 243 F.3d 435, 437 (8th Cir.
2001).

                                           II.

      Plaintiffs argue that their claims 1 and 3 state a claim upon which relief can be
granted. Claim 1 is "Denied FAPE to Geoffrey Stringer." Claim 3 is "Mr. Bailey staff
3) Sexual harassment & other harassment severe persistent pervasive." Plaintiffs also
emphasize the "Relief" paragraph of their complaint:

      I want to have my son protected at school from stalking & harassment
      including sexual. I want Mr. Bailey separate from my son totally &
      completely. I want harassment stopped. I want tape (electron verbatim

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      record) of Due Process Hearing.            FAPE for my son, Deliberate
      Indifference ceased.

       The complaint is construed in favor of plaintiffs. Frey v. City of Herculaneum,
44 F.3d 667, 671 (8th Cir. 1995). A complaint must allege facts sufficient to state a
claim as a matter of law. See Springdale Educ. Ass'n v. Springdale Sch. Dist., 133
F.3d 649, 651 (8th Cir. 1998). Although pro se complaints are to be construed
liberally, "they still must allege sufficient facts to support the claims advanced." Stone
v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). "[P]ro se litigants must set [a claim] forth
in a manner which, taking the pleaded facts as true, states a claim as a matter of law."
Cunningham v. Ray, 648 F.2d 1185, 1186 (8th Cir. 1981).

       Liberally construed, the complaint alleges that a Mr. Bailey and staff are
harassing and sexually harassing – severely, persistently, pervasively, and with
deliberate indifference – the child at school. An exhibit to the complaint is the
"Decision and Order" of the administrative panel, which adds these facts: Geoffrey,
who is diagnosed as autistic, is a student in the District. In October 2003, Geoffrey
was suspended for six days, which was upheld by the District board. The principal
(Mr. Bailey) suggested a longer suspension for disciplinary reasons, placement in an
alternative school, and a loss of credits. Due to intervention by the Individual
Education Program (IEP) team, the longer suspension was withdrawn, no change in
placement occurred, and the board decided there would be no loss of credits.

       The issue is whether these allegations state a claim under the IDEA. Plaintiffs
invoke only the IDEA. The IDEA provides access to a free appropriate public
education (FAPE) – a "basic floor of opportunity" so that a child with disabilities has
access to an individually designed education. See Yankton Sch. Dist. v. Schramm, 93
F.3d 1369, 1372 (8th Cir. 1996), citing Bd. of Educ. of Hendrick Hudson Cent. Sch.
Dist., Westchester County v. Rowley, 458 U.S. 176, 201 (1982); see also 20 U.S.C. §§



                                           -4-
1400(d)(1)(A), 1401(9). The IDEA does not require any state to provide more than
meaningful access to education with some educational benefit. See Rowley at 192, 200.

       Two circuits have ruled that harassment might be so severe and prolonged that
it deprives the child of access to educational benefits, and thus violates the IDEA. See
M.L. v. Federal Way Sch. Dist., 394 F.3d 634, 650-51 (9th Cir. 2005); Shore Reg'l
High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 195 (3d Cir. 2004). Compare Davis v.
Monroe County Bd. of Educ., 526 U.S. 629, 633, 651 (1999) (recognizing cause of
action under Title IX for student-on-student harassment which is "so severe, pervasive,
and objectively offensive that it effectively bars the victim's access to an educational
opportunity or benefit"), citing the Title VII case of Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57, 67 (1986). Therefore, the administrative panel should not have flatly
dismissed the issue of "Violation of Right to be in a controlled and disciplined
classroom free from harassment during/per IEP placement and meetings."

       The panel's ruling does not excuse the deficient complaint filed in district court.
Plaintiffs do not plead any connection between the harassment allegations and their
separate statements: "1) Denied FAPE to Geoffrey Stringer" in the "Statement of
claim," and "FAPE for my son" in the "Relief" paragraph. As a result, the district court
treated the allegations of harassment (dismissed without prejudice) separately from the
FAPE claims. Plaintiffs pro se did not properly seek leave to amend (and have not
appealed the district court's denial).

       Moreover, Plaintiffs do not allege any facts that the harassment deprived access
to the basic educational benefits of a free appropriate public education. The Decision
and Order they attached states the opposite: "There was no suggestion that Geoffrey did
not receive the services identified in his IEP." See generally Schaffer ex rel. Schaffer
v. Weast, 126 S.Ct. 528, 533-34 (2005) (party seeking relief, typically parents, have the
burden of proof in the administrative hearing).



                                          -5-
       Plaintiffs have not stated a claim under the IDEA. The district court properly
gave due weight to the administrative proceedings and did not "substitute its own notion
of educational policy for that of the administrative panel." Gill v. Columbia 93 Sch.
Dist., 217 F.3d 1027, 1037 (8th Cir. 2000); see also Rowley, 458 U.S. at 206.

                                            III.

       Plaintiffs object that the District did not give written notice of Mr. Bailey's
suggestions for a longer suspension, placement in an alternative school, and possible
loss of credits. The IDEA requires prior written notice of any proposed initiation or
change in the evaluation or educational placement of the child. See 20 U.S.C. §§
1415(b)(3), 1415(c). The district court dismissed this claim, ruling that plaintiffs did
not "come forward with any facts... in regard to their claim for 'violated written notice.'"

       The complaint has three words, "Violated written notice," which clearly does not
allege sufficient facts to state a claim. DESE's Decision and Order, attached to the
complaint, adds no specific facts on any notice of change in placement. The Decision
and Order labels as "discussion" the status of any change in placement, finding that
plaintiffs both participated in developing the IEP and had actual notice of the IEP
meeting where the discussion occurred. See Doe v. Alabama State Dep't of Educ., 915
F.2d 651, 660-61 (11th Cir. 1990). Plaintiffs did not allege facts sufficient to state a
claim. See Springdale, 133 F.3d at 651.

       Plaintiffs contend that Christopher's statements to the DESE panel were
sufficient. To the contrary, unsworn arguments are not evidence. See Gentile v.
Missouri Dep't of Corr. and Human Res., 986 F.2d 214, 219 (8th Cir. 1993). The
district court properly dismissed the claim for a violation of written notice. See Stone,
364 F.3d at 914; Springdale, 133 F.3d at 651; Cunningham, 648 F.2d at 1186.




                                           -6-
                                           IV.

       Any party to a IDEA hearing has "the right to a written, or, at the option of the
parents, electronic verbatim record of such hearing." 20 U.S.C. § 1415(h)(3); see also
34 C.F.R. § 300.509(a)(4). At the hearing, the parent requested a tape recording of the
proceedings but eventually received only a written transcript from the certified court
reporter present. In the district court, plaintiffs claimed that the statute and regulation
give them the option of choosing either a written record or an "electronic verbatim"
audio recording of the hearing. The district court deferred to the panel's determination
that: "a computer printout satisfies the definition of 'electronic' as opposed to an
audiotaped recording because the typed notes come from an electronic device."

       The only relevant authority is Edward B. v. Paul, 814 F.2d 52 (1st Cir. 1987).
There, parents requested a written transcript of the administrative hearing. New
Hampshire furnished a verbatim tape recording, but refused to transcribe it at state
expense. See id. at 54. The First Circuit found the predecessor of the IDEA gave "the
right to receive either a written or an electronic verbatim record of the hearing, with the
state having the authority to provide either alternative, at its option." Id. The First
Circuit held that "the State of New Hampshire has provided an electronic recording of
the hearing, and so has complied with the statute." Id. In making this determination,
the First Circuit necessarily ruled that a tape recording is an "electronic verbatim
record," and is not a "written" verbatim record. See also Oelman v. McKenzie, No. 85-
4088, 1988 WL 59655, at *2 (D.D.C. May 27, 1988) (holding that audiotapes are
"electronic verbatim record" under predecessor statute).

       DESE notes that the Edward B. case is not binding on this court and that the
governing statute has been amended. The amendment decides this case. When Edward
B. was decided, the statute provided "the right to a written or electronic verbatim record
of such hearing." 20 U.S.C. § 1415(d) (1984). The 1997 amendment provides "the
right to a written, or, at the option of the parents, electronic verbatim record of such
hearing." 20 U.S.C. § 1415(h)(3); see also 34 C.F.R. § 300.509(a)(4). Congress is
presumed to be aware of the judicial interpretation of a statute. See Lindahl v. Office

                                           -7-
of Pers. Mgmt., 470 U.S. 768, 782 n.15 (1985); see also Merrill Lynch, Pierce,
Fenner & Smith, Inc. v. Dabit, 126 S. Ct. 1503, 1513 (2006); Redd v. Fed. Land Bank
of St. Louis, 851 F.2d 219, 222 (8th Cir. 1988). Therefore, Congress is presumed to
have been aware of the First Circuit's interpretation that "electronic verbatim record"
includes a tape recording when it reenacted the phrase. Given the juxtaposition of
"written" records with "electronic verbatim" records in the statute, a paper transcript is
most naturally included within the "written" prong, rather than the "electronic" prong.

       The 1997 amendment clearly expanded the rights of parents. See St. Mary's
Hosp. of Rochester v. Leavitt, 416 F.3d 906, 912 (8th Cir. 2005) (distinguishing
"changing" from "clarifying" amendments). By adding the word "option," Congress
gave parents "the power or right to choose (between alternatives)." Webster's Third
New International Dictionary 1585 (unabridged 1966). One alternative is an
electronic verbatim record. The parent requested a tape recording as the hearing began.
DESE acts as if it has the option, not the parents.

       Because an audio recording is included as an electronic verbatim record under
the IDEA, while a written transcript is not, DESE should have complied with the
parent's request for it. The district court thus ruled incorrectly. In this case, however,
plaintiffs received a written verbatim record by a certified court reporter, and have
never alleged that it is inaccurate. Because the district court properly dismissed all
other claims, the failure to provide the audio recording is a harmless error. See Fed. R.
Civ. P. 61.

                                           V.

      The judgment of the district court is affirmed.
                      ______________________________




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