                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-2665
                                   ___________

Sarah Pachl, a minor, by her parents,  *
Kevin and Susanne Pachl,               *
                                       *
            Appellants,                *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Minnesota.
Alice Seagren, in her capacity as      *
Commissioner of the Minnesota          *
Department of Education; School        *
Board of Anoka-Hennepin Independent *
School District No. 11,                *
                                       *
            Appellees.                 *
                                  ___________

                             Submitted: January 12, 2006
                                Filed: July 14, 2006
                                 ___________

Before BYE, HEANEY, and COLLOTON, Circuit Judges.
                           ___________

COLLOTON, Circuit Judge.

      Sarah Pachl is a disabled child who resides within the Anoka-Hennepin
Independent School District No. 11 (“School District”) in Minnesota. In this suit, she
and her parents allege that the School District and the Minnesota Department of
Education (“Department”) violated her rights under the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. The district court1 dismissed the
claims against the Department and granted                                       in
favor of the School District on the remaining claims. The Pachls appeal, and we
affirm.

                                         I.

       Sarah Pachl’s developmental and physical disabilities include epilepsy, Dandy
Walker syndrome, autism spectrum disorder, scoliosis, and bilateral hearing loss. To
address these challenges, she receives occupational and physical therapy, speech
therapy, and adaptive physical education services. She also wears hearing aids and
uses a communication device.

       While Pachl was in elementary school, she was in an integrated mainstream
classroom for most of her school day, taking time away only for individual therapy.
In the fall of 2003, however, when she entered the sixth grade at Coon Rapids Middle
School, the School District determined that she should spend part of her day in a
center-based Structured Teaching and Related Strategies (“STARS”) special
education program. The School District implemented an interim placement under
which Pachl would spend some time in the mainstream classrooms, but most of her
day in the STARS classroom.

       At her parents’ behest, Pachl was observed by an expert, Dr. Alice Udvari-
Solner, in the interim setting. Dr. Udvari-Solner then prepared a report suggesting
that Sarah Pachl’s educational needs could be met most appropriately by spending the
majority of her school day in general education classes with supplementary aids and
services. Dr. Udvari-Solner opined that Pachl should not spend any time in the


      1
      The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.

                                        -2-
STARS classroom, believing that it limited “age appropriate interaction and
communication skills,” and that the tasks Sarah Pachl was asked to perform in the
STARS setting were “non-functional in nature and of little or no use to future
functioning.” (Appellant’s App. at 65-66). Dr. Udvari-Solner also criticized the
mainstream time as lacking effective inclusive practices and “characterized by missed
opportunities for learning new skills, using her present skills, working on her IEP
goals, or interacting with her age mates.” (Appellant’s App. at 66-67).

       In March 2004, after input from Dr. Udvari-Solner and from Sarah’s parents,
the School District proposed a new Individualized Education Plan (“IEP”) that
increased her mainstream classroom time to approximately 280 minutes each day and
limited the time in the STARS classroom to approximately 120 minutes per day. The
School District also implemented some of Dr. Udvari-Solner’s suggestions for
integrating Sarah among her peers, such as providing a more age-appropriate
schedule book and reading materials and placing her locker nearer to the homeroom
classroom.2 The School District, however, declined to follow Dr. Udvari-Solner’s
recommendation that Sarah not spend any time in the STARS classroom. Finding
that recommendation to be in conflict with the assessments of other experts who had


      2




                                         -3-
observed Sarah, the IEP team concluded that she “need[s] to have skills presented to
her in [a] repetitive and structured manner” and that she “has shown progress in
response to these strategies.” (Appellant’s App. at 97).

      Although Pachl’s time in the STARS classroom had been reduced in the new
IEP, her parents objected to the IEP’s inclusion of any STARS program time and
argued that it did not provide the “least restrictive environment” for their daughter.
The parents and School District also disagreed over the length of time proposed for
the Extended School Year program for Sarah, and whether the School District should
pay for tuition in a private summer program. The School District requested an
administrative due process hearing to resolve the conflicts.

      At the due process hearing, an administrative hearing officer considered
evidence, including Dr. Udvari-Solner’s report and the testimony of another expert,
Dr. Robert J. Miller, who had observed Sarah in the classroom. Several professionals
from Sarah’s school also testified. After reviewing the evidence, the hearing officer
agreed with the School District that the IEP was appropriate and consistent with the
IDEA’s requirements, and that “[t]he District proved that the program it provided in
the March 17 IEP will place the student in the least restrictive environment.”
(Appellant’s App. at 43). The hearing officer also found that the School District was
not required to pay any additional costs for Extended School Year services in a
private setting.

       After the unfavorable administrative decision, the Pachls filed suit against the
School District and the Department, alleging that the IEP implemented by the School
District is not compliant with the IDEA. See 20 U.S.C. § 1415(i)(2)(A). Addressing
the claims against the Department, the district court concluded that the Pachls had not
alleged any act or omission by the State that could constitute a violation of the IDEA
and thus granted the Department’s motion to dismiss. In a separate order, the district
court also entered judgment in favor of the School District. Reviewing the evidence

                                         -4-
presented to the administrative hearing officer and giving due weight to the results
of those proceedings, the district court concluded that “the hearing officer did not err
when finding that the School District proved that the combination of mainstream and
STARS learning environments will provide Sarah a meaningful education in the least
restrictive environment.” (Mem. and Order, R. Doc. No. 64, at 16; Appellant’s App.
at 24). The district court also found that the parties had agreed that the School
District would pay the tuition portion of Sarah Pachl’s private Extended School Year
services for the summer 2004, and rejected the Pachls’ allegations that the hearing
officer had committed procedural violations during the administrative hearing.

                                          II.

       On appeal, the Pachls no longer challenge the Extended School Year services
provided to their daughter, but maintain that the School District’s IEP violates
Sarah’s right to be educated in the “least restrictive environment,” which, under the
IDEA, requires that she be educated with non-disabled students to the “maximum
extent appropriate.” 20 U.S.C. § 1412(a)(5). As the Pachls note, the IDEA creates
a preference for mainstream education, and a disabled student should be separated
from her peers only if the services that make segregated placement superior cannot
“be feasibly provided in a non-segregated setting.” Roncker v. Walter, 700 F.2d
1058, 1063 (6th Cir. 1983). Nevertheless, while endorsing Roncker, we have
emphasized that the statutory language “significantly qualifies the mainstreaming
requirement by stating that it should be implemented ‘to the maximum extent
appropriate,’ 20 U.S.C. § 1412[a](5) (emphasis added), and that it is inapplicable
where education in a mainstream environment ‘cannot be achieved satisfactorily.’
Id. (emphasis added).” A.W. v. Northwest R-1 Sch. Dist., 813 F.2d 158, 163 (8th Cir.
1987). Thus, removing a child from the mainstream setting is permissible when “the
handicapped child would not benefit from mainstreaming,” when “any marginal
benefits received from mainstreaming are far outweighed by the benefits gained from
services which could not feasibly be provided in the non-segregated setting,” and

                                          -5-
when “the handicapped child is a disruptive force in the non-segregated setting.”
Roncker, 700 F.2d at 1063.

       When reviewing a school district’s compliance with the IDEA’s requirements
after an administrative hearing, the district court should make an “independent
decision,” based on a preponderance of the evidence, whether the IDEA was violated.
Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027-28 (8th Cir. 2003). The court
must nonetheless give “due weight” to the administrative proceedings and should not
“substitute [its] own notions of sound educational policy for those of the school
authorities” which it is reviewing. Id. at 1028 (quoting Bd. of Educ. v. Rowley, 458
U.S. 176, 206 (1982)). “Because judges are not trained educators, judicial review
under the IDEA is limited.” E.S. v. Indep. Sch. Dist., No. 196, 135 F.3d 566, 569 (8th
Cir. 1998). We review the district court’s findings of fact for clear error and its
conclusions of law de novo. Neosho, 315 F.3d at 1027.

       The Pachls argue that the district court applied the wrong legal standard to
Sarah’s IEP by inquiring whether the inclusion of STARS time was the most
appropriate alternative, rather than determining whether there was a way feasibly to
provide supplementary services in the regular classroom environment. We disagree.
The district court described the correct legal standard in detail and discussed the
appropriate governing cases, including Roncker. The court’s conclusion – that the
IEP at issue provides “a meaningful education in the least restrictive environment”
(Mem. and Order, R. Doc. No. 64, at 16; Appellant’s App. at 24) – also accords with
the applicable law. Contrary to the Pachls’ argument, the court considered at length
whether Sarah could be educated satisfactorily in a mainstream setting with
supplementary aids and services. The Pachls challenge the appropriateness of the
court’s comparison of segregated and integrated settings, but the comparison was
relevant to the parties’ dispute over whether Sarah Pachl would benefit from full
inclusion in the mainstream setting. See Roncker, 700 F.2d at 1063. The Pachls



                                         -6-
disagree with the conclusion that she would not so benefit, but the district court did
not misstate or misapply the relevant legal standards.

       The Pachls also challenge the factual basis for the district court’s decision.
Although the disputed IEP provides for Sarah to spend approximately 70 percent of
her time in the mainstream environment, the Pachls argue that 100 percent of her day
should be spent in the regular classroom setting.3 The district court rejected this
argument, finding that “[w]ith full inclusion, Sarah would be among her peers, but not
learning with them.” (Mem. and Order, R. Doc. No. 64, at 16; Appellant’s App. at
24). The court believed that “[p]lacing her in a learning environment in which she
is inundated with lectures and instructions that she does not understand and which
have no relevance to the work she is capable of doing is not providing her with a
meaningful education.” (Id.). Ultimately, the court concluded that “[t]he proposed
IEP, with thirty percent of the day in the STARS program and seventy percent in the
mainstream, provides an appropriate balance so that Sarah will receive meaningful
education and will also provide her with the social interaction and connection she
needs.” (Id.).

       As support for their contention that Sarah should spend 100 percent of her day
in the regular classroom, the Pachls point to the hearing officer’s statement that
“[w]hile the proposed IEP goals and objectives could be implemented in the
mainstream, [the student’s service providers] believed it would be more appropriate


      3
        During oral argument, the Pachls suggested for the first time that even if Sarah
Pachl cannot be educated in the regular classroom, she should be educated for the
entire day in a mainstream environment – for example, by receiving one-on-one
instruction in the library or in another setting where other students might be present.
The briefs filed in this court and the district court argued only that Sarah should be
instructed in the “regular class” for 100 percent of the day, and we decline to consider
a different contention raised for the first time at oral argument. See United States v.
Larison, 432 F.3d 921, 923 n.3 (8th Cir. 2006); Stephenson v. Davenport Cmty. Sch.
Dist., 110 F.3d 1303, 1306 n.3 (8th Cir. 1997).
                                           -7-
for the Student if she were provided her education and services in both the center-
based and mainstream settings.” (Appellant’s App. at 42). The Pachls believe this
asserted “finding” by the hearing officer must be followed unless it is clearly
erroneous.

       We believe the district court properly approved the hearing officer’s
conclusion. The portion of the hearing officer’s decision cited by the Pachls is within
a section headed “factual background,” and it merely summarizes portions of the
testimony received. It is not a “finding” of the hearing officer. The finding that the
hearing officer did make – that the proposed IEP educated Sarah Pachl “in the least
restrictive environment” – was amply supported by the evidence. The educators who
work with Sarah reported that structured teaching, which includes “establishing
routines, using a visual schedule and work system, and using a visual structure to
clarify independent work tasks,” was a sound education strategy that was aimed at
helping Sarah develop greater independence. (Appellee’s App. at 113). Sarah’s
service providers also believed that the functional skills that Sarah would need to
develop personal independence could not be fully addressed in the mainstream
environment, “since many of the functional skills that Sarah should learn cannot be
performed in the natural setting of the mainstream with enough frequency to provide
her the needed practice.” (Appellee’s App. at 116). Dr. Miller similarly opined that
while certain courses like choir and adaptive physical education, and even facts-based
courses like health, might be appropriate with a parallel curriculum, additional
mainstreaming would not benefit Sarah. (Appellee’s App. at 90). Although the
Pachls now argue that Sarah should spend the entire day in the regular classroom,
even Dr. Udvari-Solner recommended only that Sarah spend “the majority of her
school day” in “individually selected general education classes and environments.”
(Appellant’s App. at 64, 73) (emphasis in original). With so many educators agreeing
that the amount of mainstream time proposed in Sarah’s IEP was adequate and
appropriate, we find no error in the conclusion of the district court, giving due weight
to the views of the School District on matters of sound educational policy, that the

                                          -8-
IEP provided the least restrictive environment for Sarah’s education within the
meaning of the IDEA.4

                                          III.

       The Pachls also argue that the district court erred in dismissing their claims
against the state Department of Education. See Fed. R. Civ. P. 12(b)(6). In their
view, the district court “mistakenly characterized the relief that [they] sought against
the state as liability for hearing officers’ decisions,” while in fact they were basing
their claims on the Department’s “failure to exercise its responsibility for general
supervision to assure the provision to Sarah Pachl of a free, appropriate public
education in the least restrictive environment.” (Appellant’s Br. at 52, 59). As the


      4




                                          -9-
Pachls note, under the IDEA, state educational agencies such as the Department have
affirmative responsibilities to ensure that the provisions of the IDEA requiring
placement in the least restrictive environment are implemented, including a
responsibility to “[r]eview the [School District’s] justification for its actions” and
“[a]ssist in planning and implementing any necessary corrective action.” 34 C.F.R.
§ 300.556.

       Thus, state educational agencies may be responsible for violations of the IDEA
when the state agency in some way “fail[s] ‘to comply with its duty to assure that the
IDEA’s substantive requirements are implemented.’” John T. v. Iowa Dep’t of Educ.,
258 F.3d 860, 864-65 (8th Cir. 2001) (quoting Gadsby v. Grasmick, 109 F.3d 940,
952 (4th Cir. 1997)). For example, our court has suggested that “systemic violation”
of the State’s responsibilities under the IDEA might give rise to state liability. See
Reinholdson v. Minnesota, 346 F.3d 847, 851 (8th Cir. 2003). The Fourth Circuit has
further indicated that state agencies may be financially responsible for the costs of
private placement where the applicable local agency was not providing a free and
appropriate education. See Gadsby, 109 F.3d at 952. The Pachls’ complaint,
however, does not allege any specific facts or circumstances attributable to the
Department that could form the basis of liability under the IDEA. See Fed. R. Civ.
P. 12(b)(6). In fact, the only action attributed to the Department is its appointment
of a hearing officer. Even on appeal, the Pachls fail to articulate a specific manner
in which they believe the Department has neglected its duties to monitor the school
district, implement corrective action, or otherwise ensure that IDEA requirements are
met. Under these circumstances, we agree with the district court that the Pachls failed
to state a claim against the Minnesota Department of Education.

      The judgments of the district court are affirmed.




                                         -10-
HEANEY, Circuit Judge, dissenting.

      I respectfully dissent. The School District has violated Sarah’s right to be
educated in the “least restrictive environment,” which, under the IDEA, requires that
she be educated with nondisabled students to the maximum extent appropriate. The
record conclusively shows that this has not been the case,5 and that the proposed IEP,
scheduled to take effect if the School District prevails on this appeal, will do little to
improve Sarah’s access to a more fully inclusive education for the reasons set forth
below.

       My concerns with the majority’s opinion are three-fold. First, the majority
defers to the administrator’s determination that because Sarah will spend seventy
percent of her day in general education under the proposed IEP, she will attend school
in the least restrictive environment to the maximum extent appropriate. I disagree.
Simply expanding her time in the general education classroom does not satisfy the
IDEA unless Sarah is provided with the requisite aids and services that would
enhance her access to rich educational opportunities, in accordance with her IEP,
amidst her nondisabled peers to the maximum extent appropriate. Appellants and
their expert have provided ample evidence of the missed opportunities for supporting
Sarah’s inclusion and growth in general education under her current IEP, and the
multitude of modifications that could be implemented in general education to better
serve her educational and social needs, in accordance with an updated IEP, for most
of her day. The district court erred in failing to adopt the appellants’ expert’s
recommendations, which, in my view, would provide her with the education she is
legally entitled to.

      5
       From third grade through fifth grade, Sarah was included in general education
for more than seventy percent of her school day. When she was advanced to middle
school, the School District advised the Pachls that Sarah would be placed in the
STARS program, reducing her time in general education from more than seventy
percent to less than thirty percent a day. It is unclear from the record which IEP has
been implemented during litigation.
                                          -11-
       Second, Sarah’s time in general education settings unlawfully subjects her to
academic and social isolation. On these occasions, she is segregated from her
nondisabled peers, precluding Sarah’s participation in the routines of typical school
and adolescent culture and development of relationships with nondisabled students.
She arrives late and leaves class early because she changes classes while the hallways
are empty, she interacts solely with the paraprofessional while in class, and she
engages in tasks unrelated to the general education curriculum. In homeroom class,
the record shows that Sarah sat at a table along the side of the room because she did
not have an assigned desk. While other students worked on teacher appreciation
cards, Sarah looked at a picture book. During lunch, Sarah ate with the
paraprofessional at a table in the common lunchroom, but none of her nondisabled
peers interacted with her. While in social studies class, her nondisabled peers read
a unit about Asia while Sarah colored the top of a Xeroxed calendar. Beyond the IEP
meetings, the record demonstrates that little has been done to support Sarah’s
integration into a nonsegregated environment. There appears to be little, if any,
collaboration between special education and general education teachers in designing
and implementing lessons that are academically appropriate for Sarah and sufficiently
related to her peers’ curriculum.

       The majority asserts that the School District intends to improve Sarah’s
inclusion in general education settings by developing an age-appropriate schedule
book, training staff how to walk with Sarah down hallways, assigning Sarah to a
homeroom class located closer to her locker, and requiring Sarah’s case manager to
meet with Sarah’s “education teacher on a weekly basis.” These cursory
modifications to Sarah’s IEP fail to improve the overall integrity of her inclusion in
general education.

      Unfortunately, Sarah’s participation in general education in this school district
has deprived her of the benefits of a progressive inclusion program: recognition that
she is a valued and visible member of the school community; exposure to age-

                                         -12-
appropriate and varied curriculum and instruction; exposure to positive language and
behavioral models of typically developing peers; and the development of social and
academic relationships with general education teachers and nondisabled students.
While the IDEA “does not require that a school either maximize a student’s potential
or provide the best possible education at public expense,” Fort Zumwalt Sch. Dist. v.
Clynes, 119 F.3d 607, 612 (8th Cir. 1997), and discourages courts from substituting
their own notions of educational policy for those of trained educators, Neosho R-V
Sch. Dist., 315 F.3d at 1028, the School District fell far short of its required goal of
providing her with the least restrictive environment to the maximum extent
appropriate. Appellants’ expert, Dr. Udvari-Solner, has expressed a reasonable
concern that the School District’s attempt at mainstreaming Sarah was ineffective and
failed to meet her IEP goals. The questionable quality of Sarah’s integration into
general education makes a comparative analysis of the benefits of general education
and special education difficult, at best.

       With regard to the majority’s suggestion that Dr. Udvari-Solner’s expertise in
special education practices is deficient, the record shows that she teaches graduate
and undergraduate courses in elementary education, secondary education, and special
education at the University of Wisconsin, Madison. (Appellants’ App. Vol. II at
238.) She has supervised and trained education students who work with autistic
children, and she teaches her students how to lesson plan, implement differentiated
curriculum and cooperative learning techniques in special education. (Id. at 239.) She
also directly assists teachers in the Madison public schools to serve students with
autism and severe multiple disabilities. (Id. at 238.) The School District’s expert
witness disagreed with Dr. Udvari-Solner’s assessment of Sarah’s IEPs. Given this
conflicting expert testimony, it was inappropriate to grant summary judgment in favor
of the School District. Rather, the district court should have “weighed and evaluated
the directly contradictory expert testimony”and made its findings of fact. Hoefelman
v. Conservation Comm’n of the Mo. Dep’t of Conservation, 718 F.2d 281, 285 (8th
Cir. 1983). It failed to do so here.

                                         -13-
       Finally, the record reveals that the STARS program is outdated and in direct
conflict with best curriculum practices in special education. It appears to offer Sarah
fewer opportunities to improve her adaptive behavior, self-help, daily living, social,
and communication skills than a mainstreamed context would. The STARS
classroom may be unnecessarily restrictive, in that it limits Sarah’s ability to learn
relevant functional skills and independence that a segregated environment is designed
to address. In the School District’s Response to Report by Dr. Udvari-Solner, the
School District explained that “[a] functional skill is one that provides the student
with the opportunity to develop his/her level of personal independence and integrity.”
(Appellee’s App. at A-114.) Yet, Sarah spends much of her instructional time
engaged in matching colors, shapes, and patterns, and listening to music and books
intended for toddlers. The classroom walls are covered with preschool materials that
have little to do with the age-appropriate skills she is expected to learn and practice,
as articulated in her IEP. She sorts toothbrushes and plastic dinosaurs, and helps
“bake” cupcakes by placing a cupcake wrapper in a tin. She plays duck-duck-goose.
Such tasks appear to be unconnected with meaningful activities that are performed
at home, in school, and in vocational settings. Additionally, during the expert’s two-
day observation of Sarah in the STARS classroom, only one student spoke to Sarah
using a complete sentence, and the staff spoke to the disabled students using an
exaggerated and unnatural tone of voice. She also noted that Sarah had no
opportunities to interact with nondisabled peers while in the STARS classroom.
Instead, Sarah used a locker, a kitchen, sink, and bathroom in the special education
wing of the school, which is isolated from general education classrooms and
hallways.

      In light of the fact that the School District insists that Sarah cannot benefit from
greater inclusion in general education in spite of appellants’ strenuous objection, and
given Dr. Udvari-Solner’s legitimate concerns regarding the quality of programming
in STARS and in general education, it was clear error for the district court to hold that
the School District complied with the IDEA in developing and implementing the IEP

                                          -14-
proposed to the parents on March 14, 2004 and to grant the School District’s motion
for summary judgment on the administrative record.
                       ______________________________




                                       -15-
