               Case: 12-15483        Date Filed: 12/20/2013      Page: 1 of 33


                                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                            ___________________________

                                    No. 12-15483
                            ___________________________

                          D.C. Docket No. 1:11-cv-00727-TWT

K.A., a minor, by and through her parents
and next friends, F.A. and A.A. and F.A. and K.A.,

                                                           Plaintiff - Appellant,

versus

FULTON COUNTY SCHOOL DISTRICT,

                                                 Defendant - Appellee.
                            ___________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                          ___________________________

                                    (December 20, 2013)


Before PRYOR, JORDAN and KLEINFELD,* Circuit Judges.

KLEINFELD, Circuit Judge:




         *
          The Honorable Andrew J. Kleinfeld, United States Circuit Judge for the Ninth Circuit,
sitting by designation.
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      This is a challenge to the procedures a school district used in developing

and changing an individualized education program for a disabled child.



                                     I. FACTS



      The schoolchild, K.A., has Down’s Syndrome. Her condition is not as

disabling as that genetic disorder is for some, so her parents think she can benefit

from some classes that include children without disabilities. She has been

classified as having a “mild intellectual disability” and a “speech-language

impairment.”



      Under the Individuals with Disabilities Education Act (IDEA), K.A. is

entitled to a “free appropriate public education” implemented through an

“individualized education program” (IEP). After repeating kindergarten, the

school district and her parents got together during the spring of her second

kindergarten year and designed a one-year individualized education program for

first grade, as they had for kindergarten. The first-grade IEP put her in regular

classes for some subjects, and in special classes for others.




                                          2
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      Once first grade started the following August, her teachers said she was

disruptive and having difficulty keeping up with the curriculum. The school

district met with the parents to discuss the problems and the IEP. The school

personnel wanted her to be less “mainstreamed,” that is, to have more time in

special classes with other disabled children and less in regular classes. Most

significantly, they wanted to transfer her to a different elementary school and place

her in a “mildly intellectually disabled” program. Her parents did not agree. They

wanted to keep her in the same school, have the school assign an aide to her, and

give her more time to adjust.



      Before finalizing their disagreement or the school district’s plan, the parents

requested and the district agreed to an opportunity for them to observe what would

be their daughter’s new school. They did so, and concluded that she would be

better off staying in the same school. They thought the new school was too far

from where they lived, and that their daughter’s social skills would suffer in the

less mainstreamed program. The parents and school personnel had a “team

meeting” to discuss the IEP. The school district decided over the parents’

objections to amend the IEP and require the child to attend the new school and the

less mainstreamed program.

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      The IDEA has a procedure in which the parents or school district may

“present” a complaint if they are dissatisfied with the individualized education

program the team adopts. The child stays put in the old school under the old IEP

until the complaint is resolved. The parents presented a complaint against

implementation of the new IEP, the “stay put” provision went into effect, and K.A.

stayed at her school under the old IEP through the end of the school year when the

IEP expired.



      The parents went through the appellate process provided for by the statute: a

“due process hearing” before an independent hearing officer, followed by an

appeal to a federal district court. The hearing officer dismissed their claims, and

the district court granted summary judgment in favor of the school district. The

parents challenge the procedures used to adopt the new IEP, not its substance.

The parents’ issues on appeal boil down to the following: (1) K.A.’s parents were

deprived of prior written notice and notice of their procedural rights as required by

the IDEA; (2) the school district, not the parents, should have had to request a due

process hearing and defend the proposed IEP; (3) the district court applied the

wrong standard of review to the hearing officer’s decision and ought to have taken

additional evidence; and (4) the parents are entitled to relief under 42 U.S.C. §

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1983 because the school district’s actions violated their rights under the IDEA and

the Constitution.




                                      II. ANALYSIS



A. Mootness



      Because first grade and the one-year IEP at issue is over, the first issue is

whether the parents’ challenge is moot. We conclude that it is not, under the

“capable of repetition, yet evading review” exception to the general rules for

mootness.1 The exception applies where “(1) the challenged action is in its

duration too short to be fully litigated prior to cessation or expiration; and (2)

there is a reasonable expectation that the same complaining party will be subject to

the same action again.”2 A reasonable expectation is “more than a mere




      1
          Davis v. Fed. Election Comm’n, 554 U.S. 724, 735 (2008).
      2
          Id.

                                               5
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possibility that the conduct at issue will recur, but far less than absolute

certainty.”3



      The Supreme Court held in Honig v. Doe,4 a case under the Education of the

Handicapped Act, the materially similar predecessor statute to the IDEA, that

because the conduct giving rise to the dispute in that case was reasonably likely to

recur and the administrative and judicial process was too “ponderous” for

meaningful and timely review ever to take place, the “capable of repetition, yet

evading review” exception applied. Honig controls this case.



      The first requirement is satisfied, because disputes over individualized

education programs are generally too short in duration to be fully litigated prior to

cessation or expiration.5 IEPs typically last for only one year, as this one did, and

judicial review of a challenged program “invariably takes more than nine months

to complete, not to mention the time consumed during the preceding state




      3
          Bourgeois v. Peters, 387 F.3d 1303, 1309 (11th Cir. 2004) (quotation marks omitted).
      4
          484 U.S. 305, 317-23 (1988).
      5
          See id. at 322-23.

                                                6
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administrative hearings.”6 The “ponderous” administrative and judicial review

process measured against the brevity of a school year to which an IEP applies

satisfies the shortness of time requirement for the mootness exception.



      The likelihood of recurrence requirement is satisfied because there is a

reasonable expectation that the school district will seek to amend K.A.’s IEP in the

future, with less mainstreaming and possibly a different school, while the parents

will want more mainstreaming at the same school. The parents will have the same

procedural objections that they raise in this case.



      The case for recurrence is stronger here than in Honig and it was strong

enough there. In Honig, an emotionally disturbed student was suspended for

misbehavior. The Court thought he was likely enough to misbehave again so the

“capable of repetition” requirement was satisfied.7 His future misbehavior was, as

the dissent pointed out, at least somewhat speculative.8 By contrast, K.A. has a

genetic defect, trisomy 21 (Down’s Syndrome), which will not change and will



      6
          Bd. of Educ. v. Rowley, 458 U.S. 176, 186 n.9 (1982).
      7
          Honig, 484 U.S. at 318-22.
      8
          Id. at 337-38 (Scalia, J., dissenting).

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cause educability difficulties throughout her schooling. K.A. has many years of

schooling left. Her parents are intensively involved in her education, and there is

no reason to think that their devotion to their daughter realizing what potential she

has will diminish. Nor is there any reason to doubt that the school district’s

concern with her effect on other students and the demands her needs place on the

school will diminish.



       The school district has not disclaimed the possibility of changing her

placement when this litigation ends.9 K.A.’s 2011 IEP, subsequent to the one at

issue here, said that she was “significantly below grade level,” and the team

meeting minutes show that her parents and school personnel continue to disagree

on how best to educate her. We are likely looking at the same procedural battle

between her school and her parents every year, devolving into complaints, “stay

put” requirements, and appellate processes addressing the year already past, until

one side or the other gives up.


       9
         Compare Sacramento City Unified Sch. Dist. v. Rachel H., 14 F.3d 1398, 1403 (9th Cir.
1994) (holding that a case was not moot because the school district and the parents had
conflicting views on mainstream placement that were “continuing . . . and [would] arise
frequently”), with Lillbask ex rel. Mauclaire v. State of Conn. Dept. of Educ., 397 F.3d 77, 87-89
(2d Cir. 2005) (finding that an IEP challenge was not capable of repetition in part because the
school district acknowledged that the child had flourished in the placement plaintiffs wanted for
him and had no plans to move the child).

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      Thus, even though the school year that the challenged IEP applied to is

over, the issues raised fall within the “capable of repetition, yet evading review”

exception to mootness. K.A.’s case is not moot, so we have jurisdiction to address

the merits.



B. The IDEA Statutory Scheme



      The scheme for establishing and amending individualized education

programs is set out in a detailed, complex statute, the Individuals with Disabilities

Education Act at 20 U.S.C. § 1400 et seq. The basic structure is that after a child

is classified (as K.A. has been) as disabled, the local education agency must

develop an individualized education program for the particular child, with a

duration from one to three years.10 The IEP is a written statement that describes

the child’s academic performance and how the child’s disability affects her

education, states measurable educational goals and special needs of the child,

establishes how the child’s progress will be measured and reported, and states the

services available, based on peer-reviewed research, to enable the child to attain

the goals, advance educationally, and participate with disabled and nondisabled


      10
           20 U.S.C. § 1414(d)(2)(a), (d)(4), (d)(5).

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children.11 The point of the entire complex procedural apparatus is to provide

what the statute terms a “free appropriate public education”12 for disabled children.



       Every step in the child’s progress through school, under the IEPs and

amendments that will be adopted from time to time, involves the child’s parents.

The school districts are not to proceed on their own. Instead, decisions are made

by an “IEP Team,” whose membership is statutorily defined, with the first

members of the team to be the parents.13 The Supreme Court in Schaffer v. Weast

described “the cooperative process . . . between parents and schools” as “[t]he core

of the statute.”14 “Congress repeatedly emphasized throughout the [IDEA] the

necessity of parental participation in both the development of the IEP and any

subsequent assessments of its effectiveness.”15



       11
            Id. § 1414(d)(1)(A)(i).
       12
          Id. § 1401(9) (“The term ‘free appropriate public education’ means special education
and related services that – (A) have been provided at public expense, under public supervision
and direction, and without charge; (B) meet the standards of the State educational agency; (C)
include an appropriate preschool, elementary school, or secondary school education in the State
involved; and (D) are provided in conformity with the individualized education program required
under section 1414(d) of this title.”).
       13
            Id. § 1414(d)(1)(B).
       14
            546 U.S. 49, 53 (2005).
       15
            Honig, 484 U.S. at 311.

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      Parents are not mere spectators, or spectators with a right to complain and

seek redress, of school district personnel who establish programs for their disabled

children. They are full participants in the process. This makes practical sense, as

well as providing a decent level of respect for the views of a disabled child’s

parents. School districts employ professionals trained in educating children with

disabilities and designing appropriate programs with the benefits of educational

research literature. But parents have knowledge that schools lack about their own

children. A teacher knows how a child functions in class, but no school district

employee or consultant shares the parents’ knowledge of the history, temperament,

behavior, general abilities, and problems of their particular child. For example, a

parent can say whether a child who is apparently not expressive at school cries

every afternoon when she comes home, or whether a child who says “I can’t” for

tasks at school actually will perform them at home if the child is encouraged, or if

the tasks are broken down into smaller steps. Much as a physician benefits in a

way that a veterinarian cannot, from hearing how the patient’s condition has

manifested itself and the details of the condition outside her office, a school’s

evaluation and development of a program for a disabled child benefits from

acquiring the active participation of the parents.




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       The process for developing individualized education programs is that a team

consisting of the parents, regular and special education teachers, a school district

expert in designing such programs, and others with useful expertise meet and

agree upon a program.16 If changes are needed before the IEP expires,

amendments may be made either by a reconvened team, or by a written agreement

between the parents and the school district.17 The statute does not say whether the

team must act by consensus, majority vote, or otherwise. Any party may “present

a complaint” setting forth an alleged violation with respect to any matter relating

to the identification, evaluation, or educational placement of the child, or the

provision of a free appropriate public education.18 The parents and the school

district involved in the complaint “have an opportunity for an impartial due

       16
            20 U.S.C. § 1414(d)(1)(B), (d)(3).
       17
          Id. § 1414(d)(3)(F) (“Amendments: Changes to the IEP may be made either by the
entire IEP Team or, as provided in [§ 1414 (d)(3)(D)], by amending the IEP rather than by
redrafting the entire IEP.”) Section 1414(d)(3)(D) provides: “Agreement: In making changes to a
child’s IEP after the annual IEP meeting for a school year, the parent of a child with a disability
and the local educational agency may agree not to convene an IEP meeting for the purposes of
making such changes, and instead may develop a written document to amend or modify the
child’s current IEP.”
       18
          Section 1415(b)(6) states that a State must provide: “An opportunity for any party to
present a complaint–
       (A) with respect to any matter relating to the identification, evaluation, or educational
       placement of the child, or the provision of a free appropriate public education to such
       child; and
       (B) which sets forth an alleged violation that occurred not more than 2 years before the
       date the parent or public agency knew or should have known about the alleged action that
       forms the basis of the complaint . . . .”

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process hearing”19 before a hearing officer if they have not “resolved the

complaint to the satisfaction of the parents within 30 days.”20 The hearing officer

must not be an employee of the state or the local educational agency involved in

the education or care of the child or a person with a personal or professional

interest conflicting with his objectivity.21 At any “impartial due process hearing”

parties are entitled to “present evidence and confront, cross-examine, and compel

the attendance of witnesses.”22 Aggrieved parties may file civil actions in state or

federal court, with the court to hear additional evidence and grant relief in its

discretion basing its decision on a preponderance of the evidence.23 With some

exceptions, “the child shall remain in the then-current educational placement”

during the pendency of this lengthy process (the “stay-put” provision).24 This


       19
           Id. § 1415(f)(1)(A) (“Whenever a complaint has been received under subsection (b)(6)
or (k), the parents or the local educational agency involved in such complaint shall have an
opportunity for an impartial due process hearing, which shall be conducted by the State
educational agency or by the local educational agency, as determined by State law or by the State
educational agency.”).
       20
            Id. § 1415(f)(1)(B)(ii).
       21
            Id. § 1415(f)(3)(A)(i).
       22
            Id. § 1415(h)(2).
       23
            Id. §1415(i)(2).
       24
           Id. § 1415(j) (“Except as provided in subsection (k)(4), during the pendency of any
proceedings conducted pursuant to this section, unless the State or local educational agency and
the parents otherwise agree, the child shall remain in the then-current educational placement of
the child. . . .”).

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elaborate and extended procedure (which may apply to a past violation within two

years of the complaint) establishes the need for the “capable of repetition, yet

evading review” mootness exception where the complaint challenges an

amendment to the child’s program.



      K.A.’s parents argue that the school district did not comply with the IDEA’s

procedural requirements. They do not challenge the substance of their daughter’s

individualized education program or the amendment. Their arguments go only to

procedure.



C. IDEA Notice Requirements



      In order for the parents to effectively participate in and contribute to the

process of developing an appropriate IEP for their child, they need to know what

the school proposes to do and why, and what has been going on with the child at

school. Therefore, before a team meeting at which the school district proposes to

adopt or amend an individualized education program, the school district must

provide the parents with: (1) prior written notice that explains what the school

district proposes to do and why, the factors that are relevant to the proposal, a

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description of the evaluative methods and results the school district used as a basis

for the proposed action, and a description of other options that were considered

and the reasons why they were rejected;25 (2) an opportunity to review all records

pertaining to their child;26 and (3) a full explanation of their rights, including their

rights to participate, object, and appeal.27

       25
           Section 1415(b)(3) requires schools to provide: “Written prior notice to the parents of
the child, in accordance with subsection (c)(1), whenever the local educational agency-- (A)
proposes to initiate or change; or (B) refuses to initiate or change, the identification, evaluation,
or educational placement of the child, or the provision of a free appropriate public education to
the child.”

Section 1415(c)(1) states: “(c) The notice required by subsection (b)(3) shall include–
(A) a description of the action proposed or refused by the agency;
(B) an explanation of why the agency proposes or refuses to take the action and a description of
each evaluation procedure, assessment, record, or report the agency used as a basis for the
proposed or refused action;
(C) a statement that the parents of a child with a disability have protection under the procedural
safeguards of this subchapter and, if this notice is not an initial referral for evaluation, the means
by which a copy of a description of the procedural safeguards can be obtained;
(D) sources for parents to contact to obtain assistance in understanding the provisions of this
subchapter;
(E) a description of other options considered by the IEP Team and the reason why those options
were rejected; and
(F) a description of the factors that are relevant to the agency’s proposal or refusal.”
       26
          Section 1415(b)(1) requires school districts to provide: “An opportunity for the parents
of a child with a disability to examine all records relating to such child and to participate in
meetings with respect to the identification, evaluation, and educational placement of the child,
and the provision of a free appropriate public education to such child, and to obtain an
independent educational evaluation of the child.”

       27
          Id. § 1415(d)(1)(A) (“[a] copy of the procedural safeguards available to the parents of a
child with a disability shall be given to the parents . . . . The procedural safeguards notice shall
include a full explanation of the procedural safeguards . . . available under this section and under
regulations promulgated by the Secretary . . . relating to–
(A) independent educational evaluation;

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       K.A.’s parents argue that they did not receive adequate prior written notice

of the school district’s proposed amendment to K.A.’s IEP, and that the notice of

procedural safeguards provided by the school district did not provide a full

explanation of their rights. Whether the information that the school district

provided to K.A.’s parents complied with the IDEA’s requirements is a mixed

question of law and fact, so we review de novo.28



       Notice may have been inadequate under the statute and regulations. The

school district did not provide prior written notice before the team meeting. The



(B) prior written notice;
(C) parental consent;
(D) access to educational records;
(E) the opportunity to present and resolve complaints, including--
         (i) the time period in which to make a complaint;
         (ii) the opportunity for the agency to resolve the complaint; and
         (iii) the availability of mediation;
(F) the child's placement during pendency of due process proceedings;
(G) procedures for students who are subject to placement in an interim alternative educational
setting;
(H) requirements for unilateral placement by parents of children in private schools at public
expense;
(I) due process hearings, including requirements for disclosure of evaluation results and
recommendations;
(J) State-level appeals (if applicable in that State);
(K) civil actions, including the time period in which to file such actions; and
(L) attorneys’ fees.”).
       28
            Loren F. ex rel Fisher v. Atlanta Indep. Sch., 349 F.3d 1309, 1313 (11th Cir. 2003).

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school district argues that it satisfied the notice requirement after the team meeting

by providing K.A.’s parents with copies of the team meeting minutes, the old IEP

and the amendment, and K.A.’s educational records. These documents, however,

were provided not all at once, and only after K.A.’s father requested them multiple

times.



         Nevertheless, we are unable to identify any prejudice to K.A. or her parents

from any defects in notice or the delay in furnishing K.A.’s records. “Violation of

any of the procedures of the IDEA is not a per se violation of the Act.”29 In Doe v.

Alabama, we held that the notice deficiencies in that case had no impact on the

parents’ “full and effective participation” in the IEP process,” so the “purpose of

the procedural requirement was fully realized,” and any technical violation was

not sufficient to warrant relief.30 We reaffirmed this holding in Weiss v. School

Board of Hillsborough County where we held that parents were not entitled to

relief on their claims that their child’s school board violated the IDEA’s

procedures, including notice requirements, because the facts did not “show that




         29
              Weiss v. Sch. Bd. of Hillsborough Cnty., 141 F.3d 990, 996 (11th Cir. 1998).
         30
              915 F.2d 651, 662 (11th Cir. 1990).

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[the] procedural defects resulted in harm to [the child], or restricted the [parents’]

ability to participate fully.”31



       The parents have not identified anything they would have done differently,

any evidence they would have introduced, or any contribution they might have

made, had all the required records and notice been provided to them a reasonable

time before any of the team meetings. K.A.’s parents were informed about a

month before the proposed amendment was scheduled to take place that the school

district wanted to move K.A. to another school and put her in a less mainstream

classroom. The parents participated in two team meetings discussing the

amendment and observed the new school. The school district provided K.A.’s

parents with a Parents’ Rights document that described the procedural safeguards

available to parents under the IDEA. The school district extended K.A.’s time at

her old school by a week so that it could seek to resolve the parents’ concerns. The

parents eventually obtained all of K.A.’s records, IEPs, and the team meeting

minutes. The parents’ participation was full and effective, and they do not claim

that any procedural violations harmed K.A.. We need not decide whether the




       31
            Weiss, 141 F.3d at 997.

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various notice requirements were satisfied, because whatever notice deficiencies

there may have been in this case, they do not warrant relief.




D. IEP Amendments


      All members of the IEP team, including K.A.’s parents, agreed on the first

grade IEP that they established during the spring of K.A.’s kindergarten year. The

school district sought to amend K.A.’s IEP about a month after she started first

grade. K.A.’s parents did not agree to the amendment. The school district held a

team meeting and the team adopted the amendment. The school district told the

parents that the amendment would go into effect, unless the parents presented a

complaint and requested a due process hearing.



      The statute provides that an individualized education program may be

amended either by the “entire IEP Team,” or without a team meeting if the parents

agree.32 The amendment procedures are set forth in 20 U.S.C. § 1414(d)(3)(D) and

(F). Section 1414(d)(3)(D) provides:



      32
           20 U.S.C. § 1414(d)(3)(D), (F).

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      Agreement: In making changes to a child’s IEP after the annual IEP meeting
      for a school year, the parent of a child with a disability and the local
      educational agency may agree not to convene an IEP meeting for the
      purposes of making such changes, and instead may develop a written
      document to amend or modify the child’s current IEP.

Section 1414(d)(3)(F) states:

      Amendments: Changes to the IEP may be made either by the entire
      IEP Team or, as provided in [§ 1414 (d)(3)(D)], by amending the IEP
      rather than by redrafting the entire IEP.


      The school district argues that the IEP team can amend an IEP at a team

meeting even if the parents do not consent to the proposed change. K.A.’s parents

apparently agree with the school district, because they do not claim a right to veto

a proposed amendment. They concede that “neither side has a ‘veto’ in a

collaborative process mid-year, and each has the right to decide the importance of

the change and use the dispute resolution mechanism to resolve it.”



      We agree, and read the statute to mean that the IEP team can amend an

individualized education program at a team meeting, even if the parents do not

consent. The statute expressly requires parental consent for a written amendment

when there is no team meeting, and conspicuously omits a requirement of parental

consent if the IEP is amended at a team meeting. This omission is best read as



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implying a negative pregnant, that parental consent is not required if the team

adopts an amendment at a team meeting. The fact that parental consent is

explicitly required elsewhere in section 1414 supports our interpretation. Parental

consent is required before a school district can evaluate a child for the first time,33

before a school district can reevaluate a child,34 and before an IEP team member

can be excused from attending an IEP team meeting.35 “As this Court has

emphasized, ‘[w]here Congress knows how to say something but chooses not to,

its silence is controlling.’”36 We agree with the Seventh Circuit (and K.A.’s

parents do not dispute) that the parents do not have a veto.37


         But this is not the end of our analysis. K.A.’s parents argue that, if the

parents do not agree to an amendment, the school district must present a

complaint, request a due process hearing, and bear the burden of proof at the

hearing before the amendment can be implemented. We disagree.



         33
              Id. § 1414 (a)(1)(D).
         34
              Id. § 1414 (c)(3).
         35
              Id. § 1414(d)(1)(C)(ii)(I).
         36
         United States v. Webb, 655 F.3d 1238, 1257 (11th Cir. 2011) (quoting In re Griffith,
206 F.3d 1389, 1394 (11th Cir. 2000) (en banc)).
         37
              Hjortness ex rel. Hjortness v. Neenah Joint Sch. Dist., 507 F.3d 1060, 1066 (7th Cir.
2007).

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      We are unable to identify anything in the statute that suggests Congress

intended to require school districts to present a complaint and prevail at a due

process hearing in order to amend an IEP if the parents do not consent. The

regulations are also silent on this issue. In light of the IDEA’s lengthy and

excruciatingly detailed procedural protections, we decline to read into the statute a

significant procedural requirement that Congress did not express.



      Section 1415(b)(6) provides that a State must give:

      An opportunity for any party to present a complaint –

      (A) with respect to any matter relating to the identification,
      evaluation, or educational placement of the child, or the provision of
      a free appropriate public education to such child; and

      (B) which sets forth an alleged violation that occurred not more than
      2 years before the date the parent or public agency knew or should
      have known about the alleged action that forms the basis of the
      complaint.

Section 1415(f)(1)(A) says that:

      [w]henever a complaint has been received under subsection (b)(6) . . .
      the parents or the local educational agency involved in such
      complaint shall have an opportunity for an impartial due process
      hearing, which shall be conducted by the State educational agency or
      by the local educational agency, as determined by State law or by the
      State educational agency.




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      Congress amended the IDEA in 2004 to clarify that both a parent and a local

educational agency have “an opportunity” to present a complaint and have a due

process hearing.38 While the statute says that a school district may present a

complaint, it does not say that school districts are ever required to do so. The

IDEA specifically states that school districts can present a complaint and request a

due process hearing in certain circumstances. When “the parent of [a child who

may be disabled] does not provide consent for an initial evaluation . . . or the

parent fails to respond to a request to provide the consent, the local educational

agency may pursue the initial evaluation of the child by utilizing the procedures

described in section [1415] of this title.”39 The statutory provisions that

specifically address IEP amendment procedures allow a school district to amend

an IEP at a team meeting without parental consent. The statute is silent as to

whether the school must first present a complaint and prevail at a due process

hearing before the amendment is valid. The parents’ proposed interpretation has

no support in the complex and detailed statutory provisions enacted by Congress

and would effectively foreclose any changes to the IEP by the team without the




      38
           S.Rep. No. 108-185, p. 36-37 (2003) (emphasis added).
      39
           20 U.S.C. § 1414(a)(1)(D)(ii)(I).

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parents’ consent. That result would be inconsistent with the absence of a

requirement of parental consent if the team amends the IEP.




      K.A.’s parents argue that the Supreme Court’s decision in Schaffer v.

Weast40 resolves this question in their favor. In Schaffer, parents were dissatisfied

with the initial IEP that a school district proposed for their son, so they enrolled

him in private school and sought compensation for the private school tuition by

challenging the proposed IEP for denying their son a free appropriate public

education. The issue in Schaffer was whether the parents or the school district

bore the burden of proof to show the inadequacy of the IEP.41 The Supreme Court

held that the “burden of persuasion lies where it usually falls, upon the party

seeking relief.”42 The parents claimed that the IEP was inadequate and sought

compensation for private school tuition, so they had the burden of proof.




      40
           546 U.S. 49 (2005).
      41
           Id. at 56, 62.
      42
           Id. at 56.

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      The parents in Schaffer were the “party seeking relief,” because they

challenged the IEP.43 Likewise, K.A.’s parents are the party challenging the IEP

amendment and claiming that the school district violated the IDEA’s procedural

requirements. They are the “party seeking relief,” because they asked the hearing

officer to set aside the amended IEP. For the parents to have the burden of

presenting a complaint, requesting a due process hearing, and proving their case is

consistent with the holding in Schaffer.



      K.A.’s parents, though, do have a colorable argument under dicta in

Schaffer that says:

      If parents believe that an IEP is not appropriate, they may seek an
      administrative “impartial due process hearing.” § 1415(f). School
      districts may also seek such hearings . . . They may do so, for
      example, if they wish to change an existing IEP but the parents do not
      consent, or if parents refuse to allow their child to be evaluated.44


We reject K.A.’s parents’ argument that the language above means that school

districts must always seek a due process hearing if they want to amend an IEP over

parents’ objections. The question at issue in Schaffer was which party bears the



      43
           Id. at 62.
      44
           Id. at 53.

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burden of proof, not which party must present a complaint and seek a due process

hearing. Whether the parents could recover private school tuition turned on

whether they could prove by a preponderance of the evidence that the IEP did not

provide an appropriate education for their child. The Court had no reason to

address whether the school district or the parents had the burden of proving

noncompliance with amendment procedures. Requiring the school to make a

complaint about the team’s amendment would be inconsistent with the authority

the statute confers on the team to make an amendment.



      This reading of the IDEA does not deprive parents of a voice in their child’s

education. K.A.’s parents were notified of the proposed change and given an

explanation for the amendment, they participated extensively in the team meetings,

they received K.A.’s educational records, and they were notified of their

procedural rights, including the right to challenge the amendment by presenting a

complaint and requesting a due process hearing. The parents presented a

complaint to invoke the “stay-put” provision, and K.A. remained at her old school.

We are unable to identify any error in requiring the parents to present a complaint

and demand a due process hearing, since they disagreed with the team decision.




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E. District Court Standard of Review



      K.A.’s parents argue that the district court erred in applying the summary

judgment standard laid out in Loren F. ex rel. Fisher v. Atlanta Independent

School System45 to their claims. They argue that the district court should have

applied F.R. Civ. P. 56 summary judgment standards when reviewing the due

process hearing officer’s summary determination, because they were not given a

full opportunity to present evidence and cross-examine witnesses. For the same

reason, they argue that the district court should not have given deference to the

hearing officer’s findings.



      In Loren F., we explained that


      summary judgment [in IDEA cases] has been deemed appropriate
      even when facts are in dispute, and is based on a preponderance of
      the evidence. . . . That means that the usual F.R. Civ. P. 56 summary
      judgment principles do not apply in an IDEA case. This is not
      surprising, because no IDEA jury trial right exists.46



      45
           Loren F., 349 F.3d at 1313.
      46
           Id.

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We see no reason to depart from the Loren F. standard when the hearing officer

has granted summary determination. In Loren F., the hearing officer had also

decided the case on summary determination.47



      There were no significant factual disputes for the district court to decide,

and the court had no occasion to defer to or reject the hearing officer’s factual

findings. The parents do not identify any evidence they might have submitted that

would have established a genuine issue of fact regarding their claims. The

parents’ arguments are purely legal. It is also undisputed that K.A.’s parents were

notified of the proposed change, attended two IEP meetings at which the school

discussed amending K.A.’s IEP, observed at the new school where K.A. would

have been placed, received all of K.A.’s records, and presented a complaint. Any

defects in the notice given to K.A.’s parents did not significantly impede the

parents’ participation in the IEP process. The district court correctly stated the

Loren F. standard, fully reviewed the administrative record, and independently

analyzed each of the parents’ claims. Its application of the Loren F. standard was

not erroneous.




      47
           Id. at 1316 n.6.

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F. Additional Evidence



       The IDEA states that on appeal of a due process hearing, the district court

“shall receive the records of the administrative proceedings [and] shall hear

additional evidence at the request of a party. . . .”48 K.A.’s parents and the school

submitted cross-motions for summary judgment to the district court. Parents then

submitted a motion for a scheduling order on the cross-motions for summary

judgment. They attached a proposed order, later issued by the district court, which

stated that “motions for additional evidence under the IDEA and any pretrial order

are held in abeyance until the Court resolves the cross-motions for summary

judgment.” Parents now claim that when the district court issued this order it

violated the statute.



       The district court has discretion to determine whether or not to allow parties

to supplement the administrative record in IDEA cases.49 “Despite the fact that the

statute says the district court ‘shall hear additional evidence at the request of a

party,’ we have not previously read that as a mandate to take additional evidence

       48
            20 U.S.C. § 1415(i)(2)(C).
       49
        Walker Cnty. Sch. Dist. v. Bennett, 203 F.3d 1293, 1298 (11th Cir. 2000) (quoting
Town of Burlington v. Dep’t of Educ., 736 F.2d 773, 791 (1st Cir. 1984)).

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any time a party so requests. A district court is permitted to accept additional

evidence, but is not required to do so.”50 Had K.A.’s parents proffered evidence,

the district court and we would have been presented with a different case, probably

one involving the appropriateness of the IEP or prejudice from some defect in the

notice. As this purely legal case was presented, the district court did not abuse its

discretion when it issued the parents’ proposed order and then decided the case on

summary judgment.




G. 42 U.S.C. § 1983 Claims



      We review de novo the district court’s grant of summary judgment on

parents’ section 1983 claims.51 The district court ruled that parents could not sue

under section 1983 for IDEA statutory violations, because the IDEA contains a

comprehensive enforcement scheme. We join the First, Third, Fourth, Ninth, and

Tenth Circuits, and hold that section 1983 actions for denial of rights conferred by

the IDEA are barred because the IDEA’s comprehensive enforcement scheme


      50
           G.J. v. Muscogee Cnty. Sch. Dist., 668 F.3d 1258, 1268 (11th Cir. 2012).
      51
           McCormick v. City of Ft. Lauderdale, 333 F.3d 1234, 1242-43 (11th Cir. 2003).

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provides the sole remedy for statutory violations.52 Were there some right at issue

conferred by the Constitution or other federal laws and not by the IDEA, we would

be presented with a different question. The claims in this case though are entirely

based on rights arguably conferred by the IDEA.



       In Smith v. Robinson,53 the Supreme Court held that a handicapped child

could not pursue a section 1983 action under the Equal Protection Clause because

the IDEA’s predecessor statute, the Education of the Handicapped Act, provided a

comprehensive alternate enforcement scheme. In response, Congress amended the

Act, including what is now 20 U.S.C. § 1415(l). Section 1415(l) states:

       “Nothing in this chapter shall be construed to restrict or limit the
       rights, procedures, and remedies available under the Constitution, the
       Americans with Disabilities Act of 1990, title V of the Rehabilitation
       Act of 1973, or other Federal statutes protecting the rights of children
       and youth with disabilities . . . .”



       52
          Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 29 (1st Cir. 2006) (“We hold that where the
underlying claim is one of violation of the IDEA, plaintiffs may not use § 1983–or any other
federal statute for that matter–in an attempt to evade the limited remedial structure of the
IDEA.”); AW v. Jersey City, 486 F.3d 791, 803 (3d Cir. 2007) (en banc); Sellers v. Sch. Bd. of
Manassas, Va., 141 F.3d 524, 529-531 (4th Cir. 1998); Blanchard v. Morton Sch. Dist., 509 F.3d
934, 938 (9th Cir. 2007); Padilla v. Sch. Dist. No. 1 in Denver, 233 F.3d 1268, 1273 (10th Cir.
2000). The Second and Seventh Circuits hold that plaintiffs can bring § 1983 claims for IDEA
violations. Mrs. W. v. Tirozzi, 832 F.2d 748, 755 (2d Cir. 1987); Marie O v. Edgar, 131 F.3d
610, 621 (7th Cir. 1997).
       53
            468 U.S. 992, 1013 (1984).

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We agree with the Fourth Circuit’s interpretation of section 1415(l):

      [b]y preserving rights and remedies “under the Constitution,” section
      [1415(l)] does permit plaintiffs to resort to section 1983 for
      constitutional violations, notwithstanding the similarity of such
      claims to those stated directly under IDEA. But section [1415(l)] does
      not permit plaintiffs to sue under section 1983 for an IDEA violation,
      which is statutory in nature. Nothing in section [1415(l)] overrules
      the Court’s decision in Smith to the extent it held that Congress
      intended IDEA to provide the sole remedies for violations of the same
      statute.54


      K.A.’s parents argue that the school deprived them of their constitutional

right to due process when the school refused to request a due process hearing,

citing our decision in Manecke v. School Board of Pinellas County.55 In Manecke,

a school district refused to schedule a due process hearing for more than a year,

even though the plaintiffs had presented a complaint and requested a due process

hearing. We held that the parents’ constitutional due process rights were violated,

because they were denied access to a due process hearing.56 The school district in

this case, however, did not deny K.A.’s parents a due process hearing. K.A.’s

parents presented a complaint, had their case heard by a hearing officer, appealed




      54
           Sellers, 141 F.3d at 530 (emphasis in original).
      55
           762 F.2d 912 (11th Cir. 1985).
      56
           Id. at 919.

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to the district court, and are now before us. The district court did not err in

dismissing the parents’ section 1983 claims.



                                III. CONCLUSION



      Conscientious parents have a legitimate interest in securing the best

education their child can absorb. School districts have a legitimate interest in

providing appropriate education for disabled children, while assuring that

appropriate education for other children does not unduly suffer from disruption or

expense. These legitimate interests are in tension, but somehow must be balanced.

The statutory scheme as explained above appears to be a practical way to do that.




      AFFIRMED.




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