                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-1082
                                   ___________

School Board of Independent School       *
District No. 11, Anoka-Hennepin,         *
Minnesota,                               *
                                         *
             Appellee,                   * Appeal from the United States
                                         * District Court for the
      v.                                 * District of Minnesota.
                                         *
Joshua Renollett, a minor, by and        *
through his parents and legal guardians, *
Daniel and Patti Renollett,              *
                                         *
             Appellant.                  *
                                   ___________

                             Submitted: November 16, 2005
                                Filed: March 16, 2006
                                 ___________

Before WOLLMAN, FAGG, and MELLOY, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

      This case raises the question whether Joshua Renollett,1 a disabled student,
received a free appropriate public education (FAPE) within the meaning of the
Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1487. Josh



      1
       Consistent with usage in the appellant’s brief, we will refer to Joshua as Josh
throughout the remainder of this opinion.
appeals from the district court’s2 judgment on the administrative record that
Independent School District No. 11, Anoka-Hennepin, Minnesota (the District)
provided Josh with a FAPE from June 18, 2001, to November 7, 2001. We affirm.

                                          I.
       In 2001, Josh was a fourteen-year-old disabled student receiving special
education and related services at Anoka High School. Josh suffers from severe oral
apraxia/dyspraxia, a mild to moderate mental impairment, microcephaly, sensory
deficits, and an unspecified behavior disorder. Josh’s apraxia impairs his speech, and
he uses a device known as the Dynamyte to help him communicate. Josh is entitled
to receive special education services pursuant to the IDEA. During the 2001-02
school year, Josh attended ninth grade and resided within the geographic bounds of
the District.

        After the Renolletts requested a due process hearing to contest Josh’s education,
the District and the Renolletts met in May 2001. On June 18, 2001, the parties entered
into a settlement agreement and developed Josh’s individualized education plan (IEP)
to address Josh’s needs for his upcoming transition from the District’s middle school
to its high school. The IEP called for a written behavior plan, and the parties intended
to implement “significant change[s] by August 1, 2001 to reflect the development of
a behavior intervention plan focusing on appropriate use of communication, including
the use of the Dynamyte, and social skills.” Appellee’s App. at 15. Throughout the
summer, the parties worked to implement the requirements of the IEP, but they were
unable to meet the August 1 target date.

      On August 6, 2001, the Renolletts requested that the District reopen the May
2001 due process hearing. An independent hearing officer (IHO) met with the parties


      2
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.

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several times, and the hearing commenced on October 26, 2001, and concluded on
February 14, 2002. The hearing addressed Josh’s education from June 18, 2001,
through November 7, 2001. On May 17, 2002, the IHO issued its decision, finding
that the District provided Josh with a FAPE in all areas except speech and
occupational therapy. Accordingly, the IHO awarded Josh compensatory education
for that period of time during the first quarter of the 2001-02 school year when he was
not provided with 150 minutes per week of direct speech services and 30 minutes per
week of direct occupational therapy services.

       Josh appealed the IHO’s decision to a hearing review officer (HRO). The HRO
adopted the IHO’s findings of fact, affirmed the IHO’s decision that the District failed
to provide adequate speech and occupational therapy services, reversed three of the
IHO’s conclusions of law, and determined that Josh had been denied a FAPE. The
HRO concluded that Josh’s behavior plan needed to be in writing. The HRO agreed
with the IHO’s conclusion that the District had not used regulated behavioral
interventions, known as conditional procedures, but concluded that the District failed
to call certain meetings that were required under Minnesota law after such
interventions. Further, the HRO found that the evidence did not support the IHO’s
finding that Josh had made progress towards the goals outlined in his IEP. Ultimately,
the HRO concluded that the District violated both the procedural and substantive
requirements of the IDEA and awarded Josh an additional 700 minutes of
compensatory education.

       The District appealed the HRO’s decision, arguing that it met the procedural
and substantive requirements of the IDEA. The district court overturned the HRO’s
decision and reinstated the IHO’s determination that Josh received a FAPE except
with regard to speech and occupational therapy. Josh appeals, arguing that District
failed to follow the procedural and substantive requirements of the IDEA and failed
to provide Josh with a FAPE. Josh seeks reversal of the district court’s order and
additional compensatory education.

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                                           II.
        Under the IDEA, a party may appeal from the state administrative proceedings
to a federal district court. 20 U.S.C. § 1415(i)(2)(A). The district court must review
the state administrative record, hear additional evidence if requested, and grant such
relief it deems appropriate, basing its decision on the preponderance of the evidence.3
20 U.S.C. § 1415(i)(2)(B). The district court must independently determine whether
the child has received a FAPE, giving “due weight” to the administrative proceedings.
CJN v. Minneapolis Pub. Sch., 323 F.3d 630, 636 (8th Cir. 2003). “The district court
must give ‘due weight’ because the administrative panel had an opportunity to observe
the demeanor of the witnesses and because the court should not substitute its own
educational policy for those of the school authorities that they review.” Id. (quoting
Strawn v. Missouri State Bd. of Educ., 210 F.3d 954, 958 (8th Cir. 2000)). When, as
here, the state has a two-tier administrative review system and the findings and
conclusions conflict, the district court may choose to credit the first tier’s findings
based on observation of the witnesses. Id.; Fort Zumwalt Sch. Dist. v. Clynes, 119
F.3d 607, 610 (8th Cir. 1997).

      Whether a school district has provided a student with a FAPE is a mixed
question of fact and law, and we review de novo the district court’s ultimate
determination. Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 (8th Cir. 2003).



      3
        In Schaffer ex rel. Shaffer v. Weast, the Supreme Court held that the burden
of persuasion in an administrative hearing challenging an IEP is properly placed upon
the party seeking relief, whether that is the disabled child or the school district. 126
S. Ct. 528, 537 (2005). At the time of the administrative proceedings in this case,
however, the law in our Circuit placed the burden on the school district. E.g.
Blackmon ex rel. Blackmon v. Springfield R-XII Sch. Dist., 198 F.3d 648, 658 (8th
Cir. 1999); E.S. v. Indep. Sch. Dist., No. 196, 135 F.3d 566, 569 (8th Cir. 1998).
Here, Josh sought relief, and the burden of persuasion was placed on the District. In
light of Schaffer, it was error to place the burden on the District, but the error was
harmless because the District prevailed.

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“[T]he district court’s findings of fact are binding unless clearly erroneous.” Id.
(quoting Gill v. Columbia 93 Sch. Dist., 217 F.3d 1027, 1035 (8th Cir. 2000)).

                                         III.
       In a suit by an aggrieved party under the IDEA, the court inquires whether the
school district met the IDEA’s procedural and substantive requirements.
Procedurally, the school district must follow the procedures set forth in the IDEA to
formulate an IEP tailored to meet the disabled child’s unique needs. Clark, 315 F.3d
at 1026-27; CJN, 323 F.3d at 634. To pass substantive muster, the IEP must be
“reasonably calculated to enable the child to receive educational benefits.” Bd. of
Educ. v. Rowley, 458 U.S. 176, 206-07 (1982). If the school district has met these
requirements, it “has complied with the obligations imposed by Congress and the
courts can require no more.” Rowley, 458 U.S. at 207.

                                            A.
       Josh contends that the District violated the procedural requirements of the
IDEA in creating his IEP because the IEP did not incorporate a written behavior
intervention plan (BIP). “An IEP should be set aside only if procedural inadequacies
compromised the pupil’s right to an appropriate education, seriously hampered the
parents’ opportunity to participate in the formulation process, or caused a deprivation
of educational benefits.” Indep. Sch. Dist. No. 283 v. S.D., 88 F.3d 556, 562 (8th Cir.
1996)(internal quotations omitted). After reviewing the record, we conclude that,
although Josh’s IEP was not perfectly executed, the District did not compromise
Josh’s right to an appropriate education or deprive him of educational benefits.

       We agree with the IHO and the district court that any procedural irregularities
related to Josh’s BIP did not deny Josh a FAPE. Although the parties intended to
attach a written BIP to Josh’s IEP, neither Minnesota nor federal law require a written
BIP. Further, the IHO and the district court found that the District staff responded to
Josh’s behavioral incidents with set procedures. Josh’s behavioral incidents and the

                                         -5-
District’s responses to each are well documented, and the record is replete with
testimony from Josh’s educators of Josh’s progress during the relevant time.
Although the HRO rejected the testimony as “strong on opinion, weak on substance,”
Appellant’s App. at 141, the district court was entitled to credit the IHO’s findings of
fact that supported the legal conclusion that Josh received a FAPE. See CJN, 323
F.3d at 636 (recognizing that, in a two-tier administrative review system, a court may
choose to credit the first-tier’s findings based on observations of witnesses); Clynes,
119 F.3d at 610 (same). We conclude that the district court did not clearly err in its
findings of fact, and we agree with its conclusion that the District provided Josh with
a FAPE.

                                            B.
       Josh next argues that the behavior intervention did not meet Minnesota’s special
education regulations. Under the IDEA, a student’s IEP must “meet the standards of
the State educational agency.” 20 U.S.C. § 1401(8)(B). Thus, “when a state provides
for educational benefits exceeding the minimum federal standards set forth under
Rowley, the state standards” are enforceable under the IDEA. Blackmon ex rel.
Blackmon v. Springfield R-XII Sch. Dist., 198 F.3d 648, 658 (8th Cir. 1999). Here,
Josh argues that the District violated Minnesota Rule 3525.2900 because the staff did
not focus on skills acquisition and the District used “conditional procedures” without
calling a meeting of Josh’s IEP team.

       Josh contends that the District did not provide him with behavior interventions
that focused on skills acquisition. Under Minnesota law, “[t]he objective of any
behavioral intervention must be that pupils acquire appropriate behavior and skills.”
Minn. R. 3525.0850. None of the decisions below explicitly addressed this Minnesota
requirement. From the IHO’s findings of fact, it is evident that the staff used different
interventions depending on Josh’s behavior to redirect him and help him de-escalate.
Appellant’s App. at 44-52. We are satisfied that the record reflects that the District
used appropriate behavior interventions.

                                          -6-
      Josh also argues that the District used “conditional procedures” without
following the notice and meeting requirements of Minnesota Rule 3525.2900.
Conditional procedures are defined as “interventions that meet the definitions of
aversive and deprivation procedures which are not prohibited.” These procedures
include the following: “(A) the use of manual restraint; (B) the use of mechanical or
locked restraints; (C) time out procedures for seclusion; and (D) temporary delay or
withdrawal of regularly scheduled meals or water not to exceed 30 minutes.” Minn.
R. 3535.0210. Minnesota Rule 3525.2900 provides that districts may use conditional
procedures in emergencies, but requires that “[t]he IEP team [] meet as soon as
possible, but no later than five school days after emergency procedures have
commenced.”

       During the first quarter of the 2001 school year, Josh had several behavioral
incidents. When necessary, his paraprofessionals escorted Josh to a special room that
had been created for him to help him calm down. Both the IHO and the HRO found
that escorting Josh to his special room and having Josh spend time in that room were
not conditional procedures. Because the behavior interventions employed by the
District did not amount to conditional procedures, we conclude that no emergency IEP
team meeting was required and that the District did not violate the IDEA or Minnesota
law when it employed these interventions.

                                           C.
      Josh’s final argument is that the District failed to meet the substantive
requirements of the IDEA. We disagree. The IDEA requires only that the IEP be
“reasonably calculated to enable the child to receive educational benefits.” Rowley,
458 U.S. at 206-07. Although the time period under review was short, Josh’s teachers
and paraprofessionals testified as to the progress Josh made during the first quarter of
the 2001 school year. Accordingly, we are satisfied that he was provided with
meaningful educational benefit.


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The judgment is affirmed.
                ______________________________




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