                                                                              PUBLISH


                   IN THE UNITED STATES COURT OF APPEALS
                                                                            FILED
                           FOR THE ELEVENTH CIRCUIT                U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                          02/16/2000
                                                                      THOMAS K. KAHN
                                                                           CLERK
                                      No. 99-10140

                           D. C. Docket No. 97-CV-54-HLM

WALKER COUNTY SCHOOL DISTRICT,
JEWEL CAMPBELL, et al.,
                                                         Plaintiffs-Counter-
                                                         defendants-Appellants,
                            versus

JENSINE BENNETT, a minor, by and through
her parents and legal guardians, John & Denise
Bennett, JOHN BENNETT, DENISE BENNETT,

                                                         Defendants-Counter-
                                                         claimants-Appellees.



                      Appeals from the United States District Court
                          for the Northern District of Georgia

                                  (February 16, 2000)

Before BIRCH and HULL, Circuit Judges, and HODGES*, Senior District Judge.


*Honorable Wm. Terrell Hodges, Senior U.S. District Judge for the Middle District of Florida,
sitting by designation.
HODGES, Senior District Judge:

        This appeal involves the individuals with Disabilities Education Act (the

IDEA), 20 USC § 1440 et seq.1 The court is required to interpret one of the provisions

of the Act that has been the subject of attention by several other circuits, but not this

one.

        The stated purpose of the IDEA is to ensure that all children with disabilities

have available to them a free appropriate public education that emphasizes special

education and related services designed to meet their unique needs. 20 USC §

1400(d)(1)(A). To effectuate that purpose federal funds are made available to state

and local educational entities2 which are required through an evaluation process to

identify children with disabilities3 and to develop for each disabled child an annual

individualized education program or IEP.4 If the parents of a disabled child are




1
  The Act was substantially revised and reorganized in 1997 by Pub. L. 105-17, June 4, 1997, 111
Stat. 37. However, the provisions pertinent to this appeal were not changed. This opinion will
therefore cite the statute in its present form. 20 USC § 1440 et seq.
2
    See 20 USC § 1411.
3
    See 20 USC § 1414.
4
    See 20 USC § 1414(d).

                                              2
dissatisfied with their child’s IEP, the statute requires the educational agency to afford

them an impartial due process hearing.5

        Any party aggrieved by the result of the administrative proceedings in the state

system has the right, under § 1415(I)(2), to bring a civil action in the district court,

and

        In any action brought under this paragraph, the court - -

               (I)     shall receive the records of the administrative
                       proceedings;

               (ii)    shall hear additional evidence at the request of
                       a party; and

               (iii)   basing its decision on the preponderance of
                       the evidence, shall grant such relief as the
                       court determines is appropriate.


        The Walker County School District was aggrieved by the result of

administrative proceedings initiated under the Act by the parents of Jensine Bennett.

The Administrative Law Judge required the School District to reimburse the Bennetts

for the cost of Jensine’s private schooling during the 1995-96 school year. The

School District then brought this action in the district court under § 1415(I)(2) of the

Act seeking review and reversal of that administrative decision. Invoking the


5
    See 20 USC § 1415(f).

                                              3
statutory mandate that the court “shall hear additional evidence at the request of a

party,” the School District proposed that the district court hear a substantial volume

of testimonial and documentary evidence in addition to the record of the

administrative proceedings developed in the state system. The district court refused

to receive most of that evidence and, acting on the existing record, proceeded to affirm

the administrative decision. This appeal followed.

        Two issues are presented. First is the question whether the district court erred

in refusing to receive and consider the evidence the School District wished to offer in

addition to the record of the administrative proceedings.6 The second issue is whether

the district court erred in its judgment on the merits affirming the decision of the

Administrative Law Judge.7




6
   To the extent this issue involves a question of law - - the interpretation of the statute - - our review
is de novo. E.g., United States v. Gilbert, 136 F.3d 1451 (11th Cir. 1998); Rodriguez v. J. D. Lamer,
60 F.3d 745, 747 (11th Cir. 1995); Morris v. Haran, 52 F.3d 947, 949 (11th Cir. 1995). To the
extent the issue involves the district court’s evidentiary rulings, i.e., application of the properly
construed statute in admitting or excluding evidence, we review those rulings for abuse of discretion.
 Taylor v. Food World, Inc., 133 F.3d 1419, 1422 (11th Cir. 1998).
7
  To the extent the district court found, as did the ALJ, that the 1995-96 IEP developed for Jensine
failed to comply with the Act, the issue presents a mixed question of law and fact subject to de novo
review. JSK v. Hendry County School Board, 941 F.2d 1563, 1571 (11th Cir. 1991). The district
court’s specific findings of fact are reviewed for clear error. See e.g., Jefferson County Board of
Education v. Breen, 853 F.2d 853, 857 (11th Cir. 1998), reh’g denied 864 F.2d 795 (11th Cir. Dec.
15, 1998).

                                                    4
      We affirm the district court in both respects and conclude that we need to

discuss only the evidentiary question as an issue of first impression in this circuit.



                                           I

      Jensine Bennett was born on September 15, 1988 and was eight years old when

this suit was brought in March, 1997. She was identified as an autistic child in 1991

when she was three years old. Jensine and her parents lived at the time, and still live,

in Walker County, Georgia. The Walker County School District determined that

Jensine, because of her autism, was a child with a disability and was qualified for

special educational services under the IDEA. An individualized educational program

(IEP) was prepared and implemented for her without formal dispute during Jensine’s

preschool years, 1991-92 through 1994-95.

      In her kindergarten class during the 1994-95 school year, Jensine sporadically

engaged in self abusive acts, experienced other episodes of emotional outbursts, and

lacked focus on classroom tasks. In the spring of 1995 the School District prepared

a proposed IEP for Jensine with respect to the 1995-96 school year. Meetings were

held in June and August, 1995, but the proposed IEP was rejected by the Bennetts

because, in their view, among other things, it did not provide an extended program

during the summer months, and did not afford occupational therapy services or

                                           5
sufficient one-on-one classroom assistance to cope with Jensine’s autistic frustration.

The Bennetts thus declined the School District’s 1995-96 IEP, withdrew Jensine from

the District’s school system, enrolled her in a private school for autistic children, and

gave notice to the District that they intended to seek reimbursement of the costs of that

private schooling.8

       In July, 1996, the Bennetts requested a due process hearing under the IDEA to

press their claim for reimbursement of the expense of Jensine’s education during the

1995-96 school year.9 This placed in issue whether the School District’s proposed

IEP for Jensine during that year was sufficient to provide her a “free appropriate

public education” as required by the Act, § 1400(d)(1)(A).10




8
   This court has recognized that reimbursement is an available remedy when the public school IEP
is found to be statutorily insufficient and the private schooling chosen by the parents of a disabled
child is found to be appropriate. See e.g., Jefferson County Board of Education, 853 F.2d at 857.
9
   The ALJ and the district court found that there was no applicable period of limitations and no
laches on the part of the Bennetts in asking for the due process hearing some eleven months after
their rejection of the 1995-96 IEP. No issue concerning that conclusion is presented or decided on
this appeal.
10
   This court has previously held, following Board of Education v. Rowley, 458 U.S. 176, 102 S.Ct.
3034, 73 L.Ed.2d 690 (1982) and Todd D. v. Andrews, 933 F.2d 1576, reh’g denied, 943 F.2d 1316
(11th Cir. 1991), that each child and his or her IEP must be examined individually in determining
whether the child has been provided “a basic floor of opportunity” that affords “some” educational
benefit. The outcome need not maximize the child’s education; adequacy must be determined on
a case by case basis in the light of the child’s individual needs. Board of Education of the Hendrick
Hudson Central School District, Westchester County v. Rowley, 458 U.S. 176, 198, 203, 204, n.26,
102 S.Ct. 3034, 3046, 3049 and n.26, 73 L.Ed.2d 690 (1982).

                                                 6
      The Administrative Law Judge assigned to hear the case under Georgia’s

statutory scheme held a two day hearing in December, 1996. Extensive documentary

evidence was presented and the testimony of both lay and expert witnesses was heard.

The ALJ issued his decision in February, 1997. He found, as contended by the

Bennetts, that the 1995-96 IEP prepared for Jensine by the School District did not

comply with the IDEA as interpreted by the Supreme Court in Rowley and did not

fulfill Jensine’s right to a free appropriate public education. Specifically, the IEP was

found to be deficient because it failed to provide (1) behavior management; (2)

occupational therapy; (3) extended services for twelve months; and (4)

communication aids. The Bennetts were therefore awarded the costs of Jensine’s

private school education for the 1995-96 school year.



                                           II

      In the district court the School District moved for an evidentiary hearing to

present “additional evidence.” The court required a proffer of the evidence the School

District wished to present. The School District responded by listing the names of

nineteen witnesses (whose testimony was variously offered through the means of

personal appearance, depositions or affidavits), plus three categories of tangible or

documentary evidence. The district court then reviewed each item of the proffer,

                                           7
separately and individually. The court found that five of the witnesses had already

testified to the same general subject matter at the administrative hearing, and that the

proposed testimony of several of the remaining witnesses was already in the record

in the form of their written reports or the testimony of other witnesses who had

described their findings, so that, in either case, the proposed testimony before the

district court would be cumulative. In two instances the court found the proffered

testimony to be irrelevant. The court also found that all of the proffered witnesses

who had not already testified were available at the time of the administrative hearing;

that no explanation was given for not calling them at that time; and that permitting

them to be called in the district court would raise the dual concerns of unfairly

permitting the parties to reserve their best evidence for trial while essentially

converting an administrative review proceeding into a trial de novo. Thus, with two

minor exceptions, the district court concluded that the admission of any of the

additional evidence in the judicial review proceedings would not only be cumulative

but would undercut or unduly minimize the statutory role of the administrative process

thereby resulting in an unnecessary expenditure of judicial resources. In the end,

therefore, the district court excluded all of the School District’s proffered evidence

except for a portion of the deposition testimony of one witness and some additional

documentary evidence.

                                           8
                                                III

       Ordinarily, one expects judicial review of an administrative decision to be

limited to the record before the administrative body, and for the court to be required

to affirm if substantial evidence in the record supports the administrative

determination. See Capistrano Unified School District v. Wartenburg, 59 F.3d 884,

891 (9th Cir. 1994). But the IDEA provision for judicial review has been described

as “puzzling” (id. at 898) and “somewhat confusing.” Jefferson County Board of

Education v. Alabama Department of Education, 853 F.2d 853, 856 (11th Cir. 1988),

because it differs from the norm in a way that produces three distinct issues: (1) How

much deference, if any, should be given to the administrative decision if additional

evidence may be taken and the standard to be applied is the preponderance of the

evidence? (2) What standard should be applied in deciding what “additional”

evidence, if any, should be admitted in the district court proceeding? And (3) What

is the appropriate procedural mechanism to be implemented in the district court in

bringing the case before the court for a final decision?11

11
   Both the Sixth and the Ninth Circuits have noted that a motion for summary judgment under
Federal Rule of Civil Procedure 56 may not be an appropriate procedural device for triggering a
district court decision because the district court in reviewing the administrative record, whether
additional evidence is taken or not, must weigh and decide disputed issues of fact, an improper
exercise under Rule 56. Compare Capistrano, 59 F.3d at 891-92 and Doe v. Metropolitan Nashville
Public Schools, 133 F.3d 384, 387 n.2 (Th Cir. 1998). Though the point seems arcane, it could be
important in its influence upon the choice of the correct standard of review on appeal. The issue is
not presented by this appeal and will be left for another day.

                                                 9
      The first of these issues was the focus of the Supreme Court’s decision in Board

of Education v. Rowley, 458 U.S. 176, 102 S.Ct. 3034 (1982), and has since received

the attention of this Court in Jefferson County Board of Education v. Alabama

Department of Education, 853 F.2d 853 (11th Cir. 1988), and Doe v. Alabama

Department of Education, 915 F.2d 651 (11th Cir. 1990). Essentially, the law is

established by Rowley that the administrative decision in an IDEA case is entitled to

due weight and the court must be careful not to substitute its judgment for that of the

state educational authorities. Still, under Jefferson County Board of Education and

Doe, the extent of the deference to be given to the administrative decision is left to the

sound discretion of the district court which must consider the administrative findings

but is free to accept or reject them.

      It is the second of these issues that must now be decided in resolving this

appeal. The leading decision on point is the opinion of the First Circuit in Town of

Burlington v. Department of Education, 736 F.2d 773, 790-791 (1st Cir. 1984), aff’d.,

471 U.S. 359, 105 S.Ct. 1996 (1985). The Court held:

      We believe that the key to the review authorized by the Act lies in the
      additional evidence clause. We construe ‘additional’ in the ordinary
      sense of the word, Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct.
      311, 314, 62 L.Ed.2d 199 (1980), to mean supplemental. Thus
      construed, this clause does not authorize witnesses at trial to repeat or
      embellish their prior administrative hearing testimony; this would be
      entirely inconsistent with the usual meaning of ‘additional.’ We are

                                            10
fortified in this interpretation because it structurally assists in giving due
weight to the administrative proceeding, as Rowley requires. Rowley
458 U.S. at 206, 102 S.Ct. at 3051.

                              * * * * *
A trial court must make an independent ruling based on the
preponderance of the evidence, but the Act contemplates that the source
of the evidence generally will be the administrative hearing record, with
some supplementation at trial. The reasons for supplementation will
vary; they might include gaps in the administrative transcript owing to
mechanical failure, unavailability of a witness, an improper exclusion of
evidence by the administrative agency, and evidence concerning relevant
events occurring subsequent to the administrative hearing. The starting
point for determining what additional evidence should be received,
however, is the record of the administrative proceeding.

                                * * * * *
We decline to adopt the rule urged by defendants that the appropriate
construction is to disallow testimony from all who did, or could have,
testified before the administrative hearing. We believe that, although an
appropriate limit in many cases, a rigid rule to this effect would unduly
limit a court’s discretion and constrict its ability to form the independent
judgment Congress expressly directed.

                               * * * * *
The determination of what is ‘additional’ evidence must be left to the
discretion of the trial court which must be careful not to allow such
evidence to change the character of the hearing from one of review to a
trial de novo. A practical approach, we believe, is that an administrative
hearing witness is rebuttably presumed to be foreclosed from testifying
at trial. A motion may then be made to allow such a witness to testify
within specified limits stating the justification for the testimony. In
ruling on motions for witnesses to testify, a court should weigh heavily
the important concerns of not allowing a party to undercut the statutory
role of administrative expertise, the unfairness involved in one party’s
reserving its best evidence for trial, the reason the witness did not testify
at the administrative hearing, and the conservation of judicial resources.

                                      11
       The Court should look with a critical eye on a claim, such as made here,
       that the credibility of a witness is a central issue. The claim of credibility
       should not be an ‘open sesame’ for additional evidence. Such an
       approach followed by a pretrial order that identifies who may testify and
       limits the scope of the testimony will enable the court to avoid a trial de
       novo. (internal citations omitted)

       We agree with this well reasoned resolution of the issue by the First Circuit and

now align this court with the Seventh and Ninth Circuits in adopting the same

holding.12 See Monticello School District v. George L., 102 F.3d 895, 901 (7th Cir.

1996), and Ojai Unified School District v. Jackson, 4 F.3d 1467, 1473 and n.7 (9th

Cir. 1993), cert. denied, 513 U.S. 825, 115 S.Ct. 90, 130 L.Ed.2d 41 (1994). See also

Susan N. v. Wilson School District, 70 F.3d 751, 759-60 (3d Cir. 1995), and

Independent School District No. 283 v. S.D., 88 F.3d 556, 560 (8th Cir. 1996), in

which the Third and the Eighth Circuits take a restrictive approach to the issue without

expressly adopting the rule of Town of Burlington.

       The only criticism of the Town of Burlington holding, which we adopt today,

comes from the Sixth Circuit in Metropolitan Government of Nashville and Davidson



12
    It should also be noted that the enumeration of factors given by the First Circuit in Town of
Burlington as possible reasons for supplementation of the evidence is a non-exhaustive list. The
availability or unavailability of discovery procedures in the state administrative system, for example,
might properly influence the extent to which the district court allows discovery in the review
proceedings before deciding whether to admit or refuse any proffered evidence. The district court
also has broad discretion, in our view, with respect to the form in which any supplemental evidence
is received, i.e., deposition transcripts or affidavits in lieu of personal appearance.

                                                  12
County v. Cook, 915 F.2d 232 (6th Cir. 1990). The court there declined to approve

the First Circuit’s definition of “additional” to mean “supplemental” evidence; but the

ultimate holding in Cook left the admission or exclusion of evidence in an IDEA

proceeding to the sound discretion of the district court so that the difference between

the First and Sixth Circuits on this point would seem to be more semantical than

substantive. See id. at 234-35.



                                          IV

      Applying our construction of the statute to the evidentiary rulings made by the

district court, we have no hesitancy in concluding that the court acted well within its

discretion, and for the reasons it gave, in admitting and excluding the evidence

proffered to it by the School District. We also approve the procedure followed by the

district court in requiring a detailed proffer from the proponent of the additional

evidence so that an appropriate determination could be made concerning its

admissibility under the statute as we have construed it.

      Finally, on the merits, we conclude that the district court did not err in its

decision that the School District is required to reimburse the Bennetts for the costs of

educating Jensine at the Orange Grove Center during the 1995-96 school year.

      The judgment of the district court is in all respects AFFIRMED

                                           13
14
