                     United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                            Nos. 96-2503/2504
                               ___________

Fort Zumwalt School District,         *
                                      *
     Appellant/Cross-Appellee,        *
                                      *   Appeal from the United States
           v.                         *   District Court for the Eastern
                                      *   District of Missouri.
Robert Clynes; Ann Clynes, as         *
Parents and Next Friends of           *
Nicholas Clynes,                         *
                                    *
     Appellee/Cross-Appellant.      *
                               ___________

                          Submitted:     April 16, 1997
                              Filed:    July 10, 1997
                                ___________

Before FAGG, FLOYD R. GIBSON, and MURPHY, Circuit Judges.
                               ___________

MURPHY, Circuit Judge.

      This case involves competing interests under the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1499. Robert and Ann
Clynes sued the Fort Zumwalt public school district to obtain reimbursement
for the cost of sending their son Nicholas to a private school for learning
disabled children for the 1991-92 and 1992-93 school years. The district
court awarded reimbursement to the Clynes, but denied their additional
claims for damages and interest. Both sides appeal from the aspects of the
judgment unfavorable to them. We affirm in part and reverse in part.
                                    I.

      Nicholas Clynes was diagnosed with a learning disability in reading
and math when he was in kindergarten at Hawthorne school, which is part of
the Fort Zumwalt school district. The school responded by developing an
individualized educational plan (IEP) each year as required by IDEA to set
out a curriculum to address his disabilities. See 20 U.S.C. § 1414a(5).
The IEPs placed Nicholas in a classroom for learning disabled students part
of each school day for individualized instruction in reading and math, but
he spent the rest of the day with non-disabled students. Nicholas attended
Hawthorne from kindergarten through third grade, and each year the school
altered the amount of specialized instruction he received in response to
his needs.

      Nicholas' parents attended meetings each year in which the IEPs were
discussed.    The school district provided the Clynes with a written
explanation of their rights under IDEA, and Mrs. Clynes later testified
that she had read this information. In May 1991, the Clynes met with
district representatives to discuss the IEP for 1991-92. They expressed
concern with their son's progress and the way his needs were being
addressed at Hawthorne. They did not sign the IEP and told the district
that they had enrolled Nicholas for summer school at Churchill, a private
school for the learning disabled.      Mrs. Clynes testified that she had
indicated at the meeting that she preferred postponing any final decision
on the IEP until "the first or second week of the fall, at that time I will
have more information." The IEP itself stated that it would be reviewed
in September.

      During the summer of 1991 Nicholas was admitted by Churchill for the
school year that would begin in the fall of 1991. In August the Clynes
informed the school district that Nicholas was going to attend Churchill
for the 1991-92 school year. He attended the school from the summer of
1991 through at least the spring of 1993.




                                    -2-
      IDEA requires that a disabled child be provided with access to a free
appropriate public education. Board of Educ. v. Rowley, 458 U.S. 176, 203
(1982). Parents who believe their child's education falls short of the
federal standard may obtain a state administrative due process hearing, and
in some cases may be awarded reimbursement to pay for private school costs.
See 20 U.S.C. 1415(b)(2) (review process);     School Comm. of Burlington,
Mass. v. Department of Educ., 471 U.S. 359, 372 (1985) (reimbursement).
The final determination of the state administrative process may be appealed
to federal district court, 20 U.S.C. 1415(e)(2), and that court is to make
an independent decision of the issues based on a preponderance of the
evidence, giving "due weight" to the state administrative proceedings.
Rowley, 458 U.S. at 205-06. The level of deference accorded to the state
proceedings is less than required under the substantial evidence test
commonly applied in federal administrative law cases, but consideration
should be given to the fact that the state hearing panel has had the
opportunity to observe the demeanor of the witnesses. Independent Sch.
Dist. No. 283 v. S.D., 88 F.3d 556, 561 (8th Cir. 1996). Where there is
a conflict between the findings and conclusions of the hearing panel and
the final reviewing officer, a court may choose to credit the hearing
panel's findings based on observation of the witnesses and reject the
reviewing officer's analysis if it does not appear to give sufficient
weight to the views of the professional educators.       See id.   Finally,
courts are not to "substitute their own notions of sound educational policy
for those of the school authorities which they review." Rowley, 458 U.S.
at 206.

      The Clynes invoked the administrative process to seek reimbursement
for the cost of sending Nicholas to Churchill for the 1991-92 and 1992-93
school years. At the state hearing, both sides presented testimony and
offered documentary evidence, and the hearing panel, composed of two
educators and a lay person, applied the federal legal standard under IDEA.
The panel denied the Clynes' claim for reimbursement for both school years,
concluding that Nicholas had been making progress at Hawthorne, his
disability did not warrant complete segregation from non-disabled students,
and the school district was prepared to provide a free adequate public
education to Nicholas.




                                    -3-
      The Clynes appealed this decision to a state level review officer
(SLRO). The SLRO stated that it was not clear that the hearing panel had
determined whether the education offered to Nicholas by the district was
appropriate and that the panel had improperly placed the burden on the
Clynes to show that their son was regressing at Hawthorne.         The SLRO
inferred that the district had not offered an adequate education program
for 1991-92 because the panel had proposed significant changes in the 1992-
93 IEP as a result of Nicholas’ experience at Churchill.          The SLRO
described the prior IEPs as "hit and miss" and as not having produced a
demonstrable plan of progress. He believed the district had not identified
problem areas or applied appropriate resources in order to achieve
satisfactory results and that it had not explained why Nicholas'
performance is "the best that can be expected from him." The SLRO reversed
the hearing panel decision with regard to the 1991-92 school year and
ordered reimbursement through the end of October 1992.1       Reimbursement
beyond that time would only be available if the Clynes could demonstrate
that they had been required to pre-pay tuition at Churchill without the
right of refund.

      The school district appealed the SLRO's decision to federal court.
After a hearing the district court awarded reimbursement to the Clynes for
both the 1991-92 and 1992-93 school years, as well as the 1991 summer
school session. The court concluded that the 1991-92 IEP had not offered
Nicholas a free appropriate public education and that Nicholas' education
at Churchill complied with IDEA.      It examined Nicholas' grades, test
scores, and advancement from grade to grade at Hawthorne and found that
Nicholas had not benefited "sufficiently" from his education there and that
the 1991-92 IEP was inadequate. The IEP merely increased Nicholas' time
in the learning disabled classroom and continued the past methods of
teaching him to read, but it did not sufficiently address his needs or his
behavioral problems. The court also




      1
       The SLRO's award included reimbursement for the 1991 summer school session
because he found Nicholas' participation in that session had been necessary in order to
attend Churchill for the next school year.

                                          -4-
believed the 1992-93 IEP did not comply with IDEA requirements because it
did not offer appropriate reading instruction, was not designed to enable
Nicholas to "recognize and accept his learning disabilities," and did not
offer a completely segregated environment, which the court believed was the
only appropriate environment for him. It primarily based its order of
reimbursement for the 1992-93 school year, however, on the fact that the
IEP had not been developed until after Nicholas had started the year at
Churchill, and the Clynes had contracted to pay for the entire year.

                                   II.

      Whether a school district has offered a free appropriate public
education is a mixed question of fact and law and the district court's
ultimate determination is reviewed de novo. Capistrano Unified Sch. Dist.
v. Wartenberg, 59 F.3d 884, 891 (9th Cir. 1995) Hampton Sch. Dist. v.
Dobrowolski, 976 F.2d 48, 52 (1st Cir. 1992); but see Doyle v. Arlington
County Sch. Bd., 953 F.2d 100, 105 (4th Cir. 1991) ("whether or not a
program is appropriate is a matter of fact"). The standard of review in
this circuit is de novo as to the ultimate finding of the district court.
See Petersen v. Hastings Pub. Sch., 31 F.3d 705, 707-08 (8th Cir. 1994).
      IDEA requires a school district to offer an educational program
"reasonably calculated to enable the child to receive educational
benefits." Petersen, 31 F.3d at 707 (quoting Rowley, 458 U.S. at 206-07).
Parents who believe their child will not receive an educational benefit
under an IEP may enroll the child in a private school and later obtain
reimbursement for those costs if a federal court concludes (1) the school
district did not offer a free appropriate public education; and (2) the
private school placement complied with IDEA. Florence County Sch. Dist.
Four v. Carter, 510 U.S. 7, 13-14 (1993). Parents who enroll their child
in private school without the approval of the public school district do so
with the risk they will not receive reimbursement for their costs. School
Comm. of Burlington, 471 U.S. at 373-74; Florence County, 510 U.S. at 15.




                                    -5-
      The goal of IDEA is to provide access to public education for all
handicapped students. See Rowley, 458 U.S. at 179-81. Congress provided
limited resources to the states to implement the policy of educating all
disabled students, and the sufficiency of that education must be evaluated
in light of the available resources. A.W. v. Northwest R-1 Sch. Dist., 813
F.2d 158, 164 (8th Cir. 1987); see also Rowley, 458 U.S. at 179-81
(intention to reach all unserved disabled students).         IDEA does not
require that a school either maximize a student's potential or provide the
best possible education at public expense. Rowley at 203; A.W., 813 F.2d
at 163-64.      The statute only requires that a public school provide
sufficient specialized services so that the student benefits from his
education. Rowley, 458 U.S. at 195. IDEA's goal is "more to open the door
of public education to handicapped children on appropriate terms than to
guarantee any particular level of education once inside."2 Id. at 192.
IDEA requires disabled students to be educated with non-disabled students
whenever possible.     Id. at 202.     In determining whether a disabled
student's education is sufficient under IDEA, courts must consider the
nature of the student's disability. Id.
      The district court made extensive factual findings based on a hearing
and on evidence presented to the state hearing panel. The school district
diagnosed Nicholas as being delayed in reading and math by one year or more
at the end of his first year at Hawthorne, and he subsequently repeated
first grade.3 In May 1991, when Nicholas was in third grade, his reading
skills were at the second grade level, his word attack skills (which enable
readers to identify words they have not seen before) were at the first
grade level, and he could not write a complete sentence. He had received
three Ds




      2
        The SLRO stated that the district must show that it has "either produced
satisfactory results or has an explanation why the student's performance is the best that
can be expected from him." Under IDEA a school district is not required to maximize
a student's potential.
      3
       There was testimony at the state hearing that school authorities had wanted
Nicholas to repeat kindergarten, but that the Clynes insisted that Hawthorne promote
him to first grade.

                                          -6-
and an F in reading that year and mostly Cs in all other subjects. A
standardized test administered in September 1991, after Nicholas left
Hawthorne, placed his reading skills in the second to ninth percentile.
Nicholas' teachers at Hawthorne primarily used Dolch sight lists (visual
cues and context) to teach him to read, but they also used phonics
(auditory cues) to help him recognize words. Hawthorne emphasized use of
the Dolch sight lists because Nicholas was more successful with this
method, but he had not learned how to read long words that he did not
recognize by sight. The school decreased the amount of time Nicholas spent
in the learning disabled classroom from 26 percent in his second year in
first grade to 13 percent of his time in third grade.

      The district court found Nicholas had behavioral difficulties at
Hawthorne.   Evaluations of Nicholas done when he was in second grade
characterized him as poorly motivated, easily frustrated, and feeling
different from his peers. The 1991-92 IEP placed him with non-disabled
students for the majority of the day.      The court noted the following
statements of district personnel: his third grade teacher had said "his
attitude is reflected in his [poor] grades;" his "reading grade reflects
his effort;" "[h]e needs to stop the excuses & just work;" and "[o]ften he
appears to be apathetic about school." The court also found that one of
Nicholas' teachers told Mrs. Clynes she did not know what else she could
do since Nicholas had chosen not to learn, and the director of special
education told her that some children are non-readers.

      The district argues that Nicholas had made progress at Hawthorne and
the IEPs were sufficient to confer an educational benefit. The court erred
by requiring a program to maximize Nicholas’ ability, by comparing his
progress to non-disabled students, and by failing to examine the IEPs from
the perspective of the time when they were written. The comments made by
educators that were critical of Nicholas’ attitude should not have been
interpreted to mean that they had given up on addressing his problems, but
rather as simply reflecting his behavior. Furthermore, the district court
did not properly consider IDEA’s requirement for educating disabled
students in the least restrictive environment.




                                   -7-
      The Clynes respond by pointing out that Nicholas’ reading skills were
very weak when he left Hawthorne, that the public school system did not
effectively address their concerns, and that the district had given up on
educating him. Although the state hearing panel ruled in favor of the
district, it had recommended that it incorporate techniques used by the
Churchill school.     The Clynes argue this recommendation necessarily
supports the inference that the 1991-92 IEP did not offer a free
appropriate public education because it was generally different from the
Churchill program. The 1992-93 IEP in turn was inadequate because it did
not incorporate the Churchill program as the state hearing panel had
suggested. The Clynes also contrast the benefits Nicholas received from
his education at Churchill with his difficulties at Hawthorne.

      After studying the underlying factual findings of the district court
in light of the record and legal standards under IDEA, we conclude that the
school district did offer Nicholas a free appropriate public education as
required by Congress. Although Nicholas may well have benefited more from
his education at Churchill than at Hawthorne, and he did not read as well
as his non-disabled peers or as his parents hoped, IDEA does not require
the best possible education or superior results. The statutory goal is to
make sure that every affected student receive a publicly funded education
that benefits the student. Nicholas' record at Hawthorne indicates that
he was making progress and that the 1991-92 IEP would have provided
educational benefit to him. Despite his learning disabilities in reading
and math, Nicholas earned passing marks in third grade4 and mostly Cs in
mathematics. Although Nicholas did not have well developed word attack
skills, his overall reading skills had improved, and he had been promoted
to fourth grade just before his parents removed him from Hawthorne. See
Rowley at 203 (grades and advancement from grade to grade "an important
factor[s] in determining educational benefit"). The 1991-92 IEP called for




      4
       Nicholas received one failing grade in spelling in one quarter and another in
reading in a different quarter, but he earned passing grades in both subjects in the other
three quarters.

                                           -8-
Nicholas to spend over one quarter of each school day in the specialized
learning disabled classroom in order to address his disabilities, double
the amount of the previous year.     See id. at 196 (noting that Congress
"equated an 'appropriate education' to the receipt of some specialized
educational services"). The Hawthorne IEP set goals in word recognition,
comprehension, language skills and math, and the specialized education
provided was reasonably calculated to enable him to benefit from his public
education.5

      The teaching methods used by Hawthorne were likely to confer an
educational benefit. Although the district court was disturbed by the
level of Nicholas' word attack skills and the emphasis on Dolch sight lists
for his reading instruction, it did not focus on the fact that the 1991-92
IEP set goals for word attack or on the testimony that phonics was also to
be used. The court’s criticism of the educational methods used by the
district was not based on findings of the state educators who reviewed the
matter. Courts "lack the specialized knowledge and experience necessary
to resolve persistent and difficult questions of educational policy,"
Rowley, 458 U.S. at 208 (internal quotation marks and citation omitted),
and they must "avoid imposing their view of preferable educational
methods."    Id. at 207.      No state educational authority criticized
Hawthorne's method of teaching Nicholas how to read. Both of the state
educational experts on the hearing panel found that Nicholas had benefited
from the instruction provided at Hawthorne.      As long as a student is
benefiting from his education, it is up to the educators to determine the
appropriate educational methodology. Id. at 208.

      Placement of disabled students in segregated environments is
appropriate "only when the nature or severity of the disability is such
that education in regular classes with the use of supplementary aids and
services cannot be achieved satisfactorily." 20




      5
        The increase in specialized education for 1991-92 and the district's willingness
to review the IEP to consider what was learned from Nicholas' experience at summer
school belies the Clynes' assertion that the district had given up on educating Nicholas.

                                          -9-
U.S.C. § 1412 (5). Although Nicholas' behavior may have been affected by
his interaction with non-disabled peers, none of the state educational
experts concluded that Nicholas needed a segregated environment. The SLRO
attributed his poor behavior to his difficulty in academic classes, not to
his association with non-disabled students, and the hearing panel indicated
that Nicholas should not be segregated from non-disabled students. The
1991-92 IEP would have allowed Nicholas to interact with non-disabled
students while providing educational benefit to him, and the conclusion of
the state educational reviewers that a segregated environment was not
appropriate for him is another factor indicating that the Hawthorne program
complied with IDEA.

      Even though the 1991-92 IEP met IDEA's requirements, the school
district offered to improve it in the fall of 1991, but the Clynes removed
Nicholas from Hawthorne before the district had an opportunity to review
the IEP and attempt to come to agreement with them. Mrs. Clynes testified
that in May 1991 she told the school district that she did not agree with
the 1991-92 IEP, would not sign it, and would like it to be reviewed in the
fall of 1991 in light of Nicholas’ summer program at Churchill. The 1991-92
IEP itself stated that it was to be reviewed in September 1991, but before
that time came the Clynes informed the school district in August that
Nicholas had been enrolled in Churchill for the year. The abrupt removal
of Nicholas from Hawthorne prevented the district from following through
on the request made by the Clynes for a review in the fall and from
responding to their then current concerns.6   See Evans v. District No. 17,
841 F.2d 824, 831-32 (8th Cir. 1988) (no failure to provide free
appropriate public education where the school district had not been given
an opportunity to change the child's educational placement).




      6
        Contrary to the dissent's contention that the school district was unwilling to
explore any different approaches, there is evidence that the school district would have
altered Nicholas' IEP upon his return from the summer at Churchill. The IEP developed
in 1992 called for changes in his instruction as a result of his experience at Churchill.

                                          -10-
      In sum, the Clynes were not entitled to reimbursement from public
funds for the costs of sending Nicholas to private school in the summer of
1991 and the 1991-92 school year. The 1991-92 IEP called for an increase
in special educational services in Nicholas' areas of disability while
advancing IDEA’s mainstreaming purpose by placing him with non-disabled
students for a substantial portion of the school day.     The IEP outlined
his particular needs and responded to them in compliance with IDEA, and
Hawthorne had agreed to consider possible improvements after Nicholas
returned from summer school.

      The Clynes removed Nicholas from Hawthorne without the permission of
the school district before they sought review under IDEA, thus putting
themselves at risk that they would not be reimbursed for private school
costs. Evans, 841 F.2d at 832. Parents may not obtain reimbursement for
the time a child is placed in private school without the permission of the
school district if it is ultimately determined that the proposed IEP met
the IDEA requirements.     See   Burlington Sch. Comm., 471 U.S. at 374;
Evans, 841 F.2d at 832; see also 34 C.F.R. § 300.403 (1997) (no requirement
for state to pay private school costs if child has available free
appropriate public education).        Since the 1991-92 IEP met IDEA
requirements, the Clynes were not entitled under federal law to
reimbursement for either the the 1991-92 or 1992-93 school years.7




      7
        The 1992-93 IEP developed by the school district also met IDEA requirements.
In August 1992, the school district offered to meet with the Clynes to resolve the issues
relating to Nicholas' educational placement, and they met that month. Nicholas was re-
evaluated by the school district in September, and although he was enrolled at
Churchill and his parents had not yet sought review by the state hearing panel, his IEP
was revised in October. The IEP called for double the amount of individualized special
education compared to the 1991-92 IEP, and four times the amount he had received in
1990-91. The 1992-93 IEP set goals in, among other things, decoding, vocabulary,
comprehension, and written expression. At the same time, he was placed with non-
disabled students in non-academic subjects.

                                          -11-
                                   III.

      The issues raised by the Clynes in their cross-appeal are without
merit.    They appeal the denial of their claim for reimbursement for
interest on loans they took out to pay for Nicholas' private school
education at Churchill.     We need not decide whether interest is ever
available under IDEA because by enrolling Nicholas at Churchill without the
permission of the school district, the Clynes took the risk that they would
not receive reimbursement from public funds for their loans, let alone for
the interest on them. They also appeal the dismissal of their claims for
damages under IDEA, the Americans with Disabilities Act (ADA), 42 U.S.C.
§12132; 42 U.S.C. § 1983; and Section 504 of the Rehabilitation Act of
1973, § 794, for physical illness and emotional distress caused by the
district’s allegedly incompetent and unprofessional failure to provide
Nicholas with an adequate education.      The damage claim cannot succeed
because the district offered Nicholas a free appropriate public education,
and damages are not available for IDEA violations. Heidemann v. Rother,
84 F.3d 1021, 1033 (8th Cir. 1996). We affirm the rulings of the district
court on these issues.

                                   IV.

      For the reasons discussed, the public school district was not
obligated to reimburse the Clynes for Nicholas' education at the Churchill
private school, and the Clynes have not shown that the district court erred
in denying them relief on their cross- appeal. We affirm in part, reverse
in part, and remand for entry of judgment in favor of the school district.


Floyd R. Gibson, Circuit Judge, concurring in part and dissenting in part.

      I agree that our decision in Heidemann v. Rother, 84 F.3d 1021, 1033
(8th Cir. 1996), precludes the Clyneses from recovering damages in this
action, and I can




                                   -12-
conceive of no authority that would allow them compensation for interest
on loans they took out to pay for Nicholas's private schooling. Therefore,
I concur in Part III of the Court's opinion. Nonetheless, because I would
affirm the district court's judgment in toto, I respectfully dissent from
Part II of the opinion.

      IDEA makes available federal money to assist the states in educating
disabled children. See Board of Educ. v. Rowley, 458 U.S. 176, 179 (1982).
To share in these funds, participating states must agree to offer a "free
appropriate public education" to all disabled children.       20 U.S.C. §
1412(1) (1994). As a measure to ensure that Congressional goals are met,
IDEA directs local school districts, in consultation with parents,
teachers, and, where appropriate, the child himself, to develop an
"individualized education program" ("IEP") for each disabled student. Id.
§ 1401(18), (20).     An IEP satisfies IDEA's requirement of a free and
appropriate education so long as it "consists of educational instruction
specially designed to meet the unique needs of the [disabled] child,
supported by such services as are necessary to permit the child 'to
benefit' from the instruction." Rowley, 458 U.S. at 188-89.

      If parents feel that their child's IEP does not afford a free
appropriate public education, they may, under certain circumstances,
unilaterally place the child in a private school pending administrative and
judicial review of the IEP. See School Comm. of Burlington v. Department
of Educ., 471 U.S. 359, 369-70 (1985). This is, at least from a financial
perspective, a perilous maneuver, for as the majority correctly recognizes,
parents are entitled to reimbursement for the costs of enrolling their
disabled child in a private facility "only if a federal court concludes
both that the public placement violated IDEA, and that the private school
placement was proper under the Act." Florence County Sch. Dist. Four v.
Carter, 510 U.S. 7, 15 (1993). Applying this test to the facts of the
instant case, I agree with Judge Gunn that the Clyneses are entitled to
compensation for the expenses they incurred in sending Nicholas to the
Churchill School.




                                   -13-
      Before proceeding to the merits of this appeal, a word must be said
about the applicable standard of review. We have described federal review
of the state administrative process as a "quite narrow" endeavor. Petersen
v. Hastings Pub. Sch., 31 F.3d 705, 707 (8th Cir. 1994). This is because
the federal courts do not possess "the specialized knowledge and experience
necessary to resolve persistent and difficult questions of educational
policy," Rowley, 458 U.S. at 208 (quotations omitted), and we must
therefore give "due weight" to the state proceedings, id. at 206. In IDEA
cases originating from a state such as Missouri, which has created a two-
tiered administrative system, we must give deference to the opinion of the
state level review officer ("SLRO"), who is the person empowered to issue
a final decision for the state. See Thomas v. Cincinnati Bd. of Educ., 918
F.2d 618, 624 (6th Cir. 1990)("[T]he only logical position, under Rowley
and general principles of administrative law, is that federal courts are
required to defer to the final decision of the state authorities, in this
case that of the SLRO."); Karl v. Board of Educ., 736 F.2d 873, 877 (2d
Cir. 1984)("We believe Rowley requires that federal courts defer to the
final decision of the state authorities, and that deference may not be
eschewed merely because a decision is not unanimous or the reviewing
authority disagrees with the hearing officer."); cf. Independent Sch.
Dist. No. 283 v. S.D., 88 F.3d 556, 561 (8th Cir. 1996)(declining to
definitively answer this question); Carlisle Area Sch. v. Scott P., 62 F.3d
520, 528-30 (3d Cir. 1995)(deeming it appropriate to defer to opinion of
state appeals panel, but assuming that the federal courts should accord
somewhat less consideration to an appeals panel ruling that disregards a
hearing officer's credibility findings which find support in the record),
cert. denied, 116 S. Ct. 1419 (1996). Likewise, though the majority is
correct in stating that we should examine de novo a district court's
ultimate determination of whether an IEP is appropriate, we are bound by
a district court's underlying factual findings unless they are clearly
erroneous. See Yankton Sch. Dist. v. Schramm, 93 F.3d 1369, 1374 (8th Cir.
1996).

        In light of the detailed factual findings made by the district
court, and giving "due weight" to the SLRO's determination that the IEP for
the 1991-1992 school year




                                   -14-
was inappropriate, I am unable to conclude that Fort Zumwalt provided
Nicholas a free appropriate public education for that period. The district
court found that from September of 1989 to May of 1991 Nicholas's word
attack skills had not risen above a first grade level, see Fort Zumwalt
Sch. Dist. v. Missouri State Bd. of Educ., 923 F. Supp. 1216, 1222 (E.D.
Mo. 1996), and a standardized test administered in September of 1991
revealed   that his reading proficiency ranked in the second to ninth
percentile, see id. at 1224. At the close of his fifth year in the Fort
Zumwalt School District, Nicholas Clynes, at the age of ten, still did not
know the alphabet, could not recite the days of the week, and could not
identify the months of the year.8 See id. at 1222. It is true, as the
majority points out, that Fort Zumwalt promoted Nicholas to the fourth
grade, but it is notable that in third grade Nicholas did not receive a
mark above a "C." See id. at 1221. By the end of the year, Nicholas had
failed Spelling and had managed to raise a failing grade in Reading for the
third quarter to a "D" for the final quarter. See id.

      In the face of these disturbing trends, Fort Zumwalt prepared an IEP
for 1991-1992 that did not propose any significant changes in Nicholas's
educational placement. See id. at 1222. The IEP did set goals in word
attack skills, but Nicholas's resource room instructor, Miss Ruhr,
testified that she would continue to emphasize the child's ability to
recognize the meaning of sighted words, a method that had failed miserably
in the past to enhance Nicholas's reading aptitude.       See id.   At the
meeting to discuss the IEP, the Clyneses expressed concern with Nicholas's
inability to read and asked what alternatives were available to their son.
See id.; App. at 459-60. The district reacted by attributing Nicholas's
academic shortcomings to his own poor attitude and refusal to put forth the
requisite effort. See Fort Zumwalt, 923 F. Supp. at 1222. Miss Ruhr
stated that she had "tried everything" and did not "know what else to do";
in her




      8
       At Nicholas's state due process hearing, his father, Robert Clynes, testified that
the child had mastered these tasks within two weeks after entering the Churchill
School. App. at 477.

                                          -15-
opinion, Nicholas had "chosen not to learn." See id.; App. at 26. Alarmed
by this response, Mrs. Clynes later telephoned Pat Moore, Fort Zumwalt's
director of special education, to discuss Nicholas's meager progress. See
Fort Zumwalt, 923 F. Supp. at 1222. Mrs. Moore informed the worried mother
that some children are simply "non-readers" despite the district's best
efforts.    See id.   After deciding that the district had given up on
         9
Nicholas, the Clyneses enrolled the child in the Churchill School.

      I agree with the SLRO and the district court that the IEP for 1991-
1992 was not designed to provide "personalized instruction with sufficient
support services to permit [Nicholas] to benefit educationally from that
instruction." Rowley, 458 U.S. at 203. By submitting an IEP substantially
similar to others that had previously produced so few positive results, and
by exhibiting an unwillingness to explore any different approaches,10 Fort


      9
       Mrs. Clynes's testimony regarding her conversation with Mrs. Moore provides
revealing insight into the parents' point of view:

             At that time, you know, [after Mrs. Moore had made the remark]
      about the non-reader, I then asked her if she had any knowledge of
      Churchill. She said, "Yes, I'm aware of Churchill but, no, I don't per se
      know the programs, or anything like that," and I had let her know that,
      "I'm quite concerned that something needs to be done," that I had been to
      my pediatrician, that, you know, "He is recommending that Nick needs
      more help in this area," and she made no offer whatsoever of maybe I
      need to sit down with you, maybe we need to get together and see if
      there's a better program for your son, at which time I proceeded to hang
      up from her, call my husband and say, "That's it, no one gives a blank
      about our son, it's time for us to take control," and I did.

App. at 435-36.
      10
          The majority contends that "[n]o state educational authority criticized [the
district]'s method of teaching Nicholas how to read," but the SLRO's decision included
the following admonition:

             The various IEPs show a hit and miss approach to dealing with
      [Nicholas's] failures. There was no focused effort to follow up on failures
      and to produce a plan of progress that could be clearly demonstrated. The

                                         -16-
Zumwalt did not extend to Nicholas the free and appropriate




      District is not under any obligation to make Nicholas an honor student,
      however it should demonstrate that it has identified the problem areas,
      applied the appropriate resources and has either produced satisfactory
      results or has an explanation why the student's performance is the best
      that can be expected from him.

App. at 34-35 (emphasis added). While this might not be an outright condemnation of
Fort Zumwalt's teaching methods, it comes very close, and it certainly discloses the
SLRO's assessment that the IEP was clearly deficient. Cf., e.g., 20 U.S.C. §
1401(20)(F) (instructing that an IEP should contain "appropriate objective criteria and
evaluation procedures and schedules for determining, on at least an annual basis,
whether instructional objectives are being achieved").

                                         -17-
education mandated by IDEA. To be sure, Nicholas was steadily advancing
from grade to grade in the Fort Zumwalt schools, and the Supreme Court has
stressed that "[t]he grading and advancement system . . . constitutes an
important factor in determining educational benefit," Rowley, 458 U.S. at
203, but Nicholas's achievements, particularly in the area of reading
skills, can at best be described as trivial. This cannot be the sort of
education Congress had in mind when it enacted IDEA.        See Mrs. B. v.
Milford Bd. of Educ., 103 F.3d 1114, 1120-21 (2d Cir. 1997)(reasoning that
the Rowley standard contemplates more than mere trivial advancement); Polk
v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 183 (3d Cir.
1988)("[W]hen the Supreme Court said 'some benefit' in Rowley, it did not
mean 'some' as opposed to 'none.' Rather, 'some' connotes an amount of
benefit greater than mere trivial advancement."), cert denied, 488 U.S.
1030 (1989); Hall v. Vance County Bd. of Educ., 774 F.2d 629, 636 (4th Cir.
1985)("Clearly, Congress did not intend that a school system could
discharge its duty under [IDEA] by providing a program that produces some
minimal academic advancement, no matter how trivial."); cf. Rowley, 458
U.S. at 203 n.25 ("We do not hold today that every [disabled] child who is




                                   -18-
advancing from grade to grade in a regular public school system is
automatically receiving a 'free appropriate public education.'").    The
majority, in resolving that Fort Zumwalt did offer Nicholas a free
appropriate public education, not only does disservice to Congressional
intent, but also disregards the deference we are required to give to the
conclusion reached by the SLRO.11




      11
         The Court does not seem to place dispositive weight upon our decision in
Evans v. District No. 17, 841 F.2d 824 (8th Cir. 1988), but the Court does suggest that
the Clyneses did not comply with the notice requirement we announced in that case.
I disagree. In Evans, we affirmed the district court's denial of reimbursement to parents
who had precipitously enrolled their child in a private school, explaining that "[a]
school district should be on notice of disagreements and given an opportunity to make
a voluntary decision to change or alter the educational placement of a [disabled] child."
Id. at 831-32. We acknowledged, however, that parents may independently choose an
appropriate private placement "if it is likely that no change would be made which
would benefit [the child] (if the school district had made it clear that no change in the
placement would occur)." Id. at 832.

        Unlike the claimants in Evans, see id. at 831, the Clyneses specifically requested
some alternative placement for Nicholas. See App. at 460 ("[A]t th[e IEP] meeting I
said, 'Well, what else can you offer, self-contained?'"); App. at 475-76 ("During the
[IEP] meeting we said we were very dissatisfied with what was happening with Nick,
he still wasn't learning. We asked them at that point in time what other programs they
had, and my wife mentioned self-contained, and they said at that point in time Nick was
not a candidate for self-contained."); App. at 435-36 ("I had let [Pat Moore] know that,
'I'm quite concerned that something needs to be done,' that I had been to my
pediatrician, that, you know, 'He is recommending that Nick needs more help in this
area,' and she made no offer [of help]."). The position adopted by Nicholas's educators
in answer to these pleas, as disclosed by statements at the IEP meeting and Mrs.
Moore's comments to Mrs. Clynes, evidenced a likelihood that "no change would be
made which would benefit [Nicholas]," Evans, 841 F.2d at 832, and there is absolutely
no reason to believe that the district would have drastically altered its stance had it
received one more opportunity to assess the IEP. Consequently, I do not think
Evans stands as an impediment to reimbursement in this case.

                                          -19-
      In sum, I think the district court properly decided that the 1991-
1992 IEP was deficient. I additionally believe the Churchill School was
without a doubt an appropriate placement for Nicholas (the facts confirm
his improvement at that school),12 and I would thus hold that the Clyneses
are entitled to reimbursement for the summer of 1991 and the 1991-92 school
year. Furthermore, because the district did not prepare the 1992-93 IEP
until after the Clyneses had contractually committed to send Nicholas to
Churchill for that term, I would also approve reimbursement for the 1992-93
school year.     To the extent the majority has decided otherwise, I
respectfully dissent.

A true copy:

      Attest:

             CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




      12
         Having determined that Fort Zumwalt did offer Nicholas a free appropriate
public education, the majority has apparently found it unnecessary to evaluate the
propriety of placement at the Churchill School. The Court does, though, mention
IDEA's mainstreaming requirement. See 20 U.S.C. § 1412(5) (1994). I would hold
that the preference for mainstreaming is honored where parents send their child to an
academy, such as the Churchill School, which employs a curriculum designed to
prepare the student for a return to a regular classroom environment.

                                        -20-
