                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 02-1261
                                  ___________

CJN, by and through his Parent           *
and Natural Guardian SKN,                *
                                         *
               Appellant,                *
                                         * Appeal from the United States
        v.                               * District Court for the District
                                         * of Minnesota.
Minneapolis Public Schools, Special      *
School District No. 1; Minneapolis       *
Board of Education; Catherine Shreves, *
Chair; Carol Johnson, Superintendent, *
in their representative capacities,      *
                                         *
               Appellees.                *
                                         *
----------------------------             *
                                         *
Children's Law Center of Minnesota;      *
ARC Minnesota; ARC Hennepin-             *
Carver,                                  *
                                         *
               Amici on Behalf of        *
               Appellant.                *
                                    ___________

                            Submitted: October 11, 2002

                                 Filed: March 21, 2003 (Corrected: 03/26/03)
                                  ___________
Before MORRIS SHEPPARD ARNOLD, MAGILL, and BYE, Circuit Judges.
                         ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       This case raises the question, among others, of whether a disabled student,
whom we shall call CJN, received a free, appropriate public education (FAPE) in his
third-grade year as required by the Individuals with Disabilities Education Act
(IDEA), 20 U.S.C. §§ 1400 – 1487. The district court1 held that he did, focusing on
CJN's academic progress and the continuous efforts to tailor his individualized
education plan (IEP) to his behavioral challenges. Because we agree with the district
court that CJN received a FAPE, and agree as well with its assessment of related
issues, we affirm.

                                          I.
       As part of providing a FAPE under the IDEA, a school must formulate an IEP
tailored to the disabled child's unique needs. 20 U.S.C. § 1412. For an IEP to pass
substantive muster, it must be "reasonably calculated to enable the child to receive
educational benefits." Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176,
206-07 (1982).

      CJN is an eleven-year-old boy with lesions in his brain and a long history of
psychiatric illness. A special education student in the Minneapolis Public Schools,
Special School District No. 1 (District) since kindergarten, CJN has consistently had
behavioral difficulties while nonetheless progressing academically at an average rate.

      At the beginning of his third-grade year in September, 2000, CJN was placed
in a special program for elementary needs (SPEN) classroom at Keewaydin


      1
       The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.

                                         -2-
Elementary School (moving with a teacher from his prior school) while he awaited
the results of a functional behavior assessment and an occupational therapy
evaluation. Within a few weeks, he had transferred to Elana Schroeder's SPEN
classroom, because it provided more structure and because her students functioned
at a higher academic level. In light of CJN's educational needs, Ms. Schroeder
offered him reduced homework assignments, more time to complete assignments,
positive reinforcement for meeting minimal requirements, and a so-called token
economy system for reinforcing good behavior.

      CJN nevertheless misbehaved in Ms. Schroeder's classroom many times,
leading to him being given "time-outs" and even to being physically restrained. Most
episodes of restraint were for less than a minute, but there were six days on which
CJN was restrained for five or more minutes: Restraint was used after CJN began
kicking others, hitting staff with pencils, or banging his head against the wall. On
one occasion in December, a behavioral outburst led to police intervention and a
period of hospitalization for CJN. This was his last day at Keeywaydin.

       CJN's IEP team convened in October, 2000, to discuss his evaluation results
and recent misbehavior and again in November to discuss his behavioral goals and
the procedures to be followed if CJN required restraint. Immediately after the holiday
break, CJN's IEP team decided that he would divide his time between Whittier
Elementary School and a day treatment program. At Whittier, CJN was to receive the
help of a one-to-one paraprofessional and was to participate in a point reward system
to reinforce good behavior. CJN attended Whittier for only seven half-days, however,
because an episode occurred that required him to be taken to a local crisis center. The
District and his mother then agreed to instruction at home, but, a day after that
instruction began, his mother unilaterally decided to enroll CJN in Calvin Academy,
a private school that serves disabled and "at-risk" students.




                                         -3-
       CJN's mother then filed a complaint with the Minnesota Department of
Children, Families and Learning, seeking, among other things, a declaration that the
District had not provided CJN with a FAPE and asking for reimbursement for his
private school tuition. As part of this proceeding, several independent evaluators
analyzed CJN, the principal evaluation being provided by Dr. Richard Ziegler. In
March, the IEP team reviewed Dr. Ziegler's summary and proposed that CJN be
placed in a "Public Separate Day School setting" which could provide more mental
health services than Whittier. CJN has continued to have significant behavioral
difficulties at Calvin Academy.

       Based on 290 "findings of fact," an independent hearing officer (HO) found
that although CJN had received a FAPE through the second grade, he had not
received one from September 2000 to February 2001, mainly because of the lack of
sufficient positive behavioral interventions during the latter period and the amount
of physical restraint that he was subjected to. In addition to granting other relief, the
HO ordered the District to reimburse CJN's mother for his private school tuition and
placed him at Calvin through the 2002-2003 academic school year. On appeal, a state
hearing review officer (HRO) reversed the HO's decision that CJN did not receive a
FAPE from September 2000 to February 2001, adopting 286 of the HO's "findings
of fact" and making thirty-five more of his own. The district court affirmed the
HRO's decision, giving due weight to the HRO's conclusions and focusing on CJN's
academic progress and his IEP team's continuous efforts to refine his IEPs to account
for his behavioral challenges in its eight IEP team meetings between August 29,
2000, and March 2, 2001.

                                        II.
      CJN first argues that the district court erred by not deferring to the HO's
conclusions of law and credibility determinations. In particular, CJN contends that
the HRO wrongly reversed the HO's credibility determinations when adopting the



                                          -4-
thirty-five additional "findings of fact" and making its "conclusions of law," upon
which the district court relied.

       Under the IDEA, a district court must review the state administrative record,
hear additional evidence if requested, and, "basing its decision on the preponderance
of the evidence, shall grant such relief as the court determines is appropriate." 20
U.S.C. § 1415(i)(2)(B). Although a district court should independently determine
whether the child has received a FAPE, it must give "due weight" to agency decision-
making. See Independent Sch. Dist. No. 283 v. S.D., 88 F.3d 556, 561 (8th Cir.
1996). "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." Strawn v. Missouri State Bd. of Educ. , 210 F.3d 954, 958 (8th Cir.
2000). When, as here, the relevant state has a two-tier administrative review system,
we have recognized that "[w]here 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." Fort
Zumwalt Sch. Dist. v. Clynes, 119 F.3d 607, 610 (8th Cir. 1997), cert. denied, 523
U.S. 1137 (1998).

      CJN contends that the HO properly discredited the views of the school
authorities and, thus, the HRO erred by believing them and adopting "unsupported
credibility-based findings of fact and conclusions." We reject this characterization
of what the HRO did, however, since neither his additional findings nor his
conclusions were based on credibility determinations different from those of the HO,
much less on a different view of the underlying facts.

      We admit that some confusion arises because both the HO and the HRO use the
terms "findings of fact" and "conclusions of law" in an unconventional fashion. For
instance, the vast majority of both the HO's and HRO's "findings of fact" are not facts

                                         -5-
that the HO or HRO actually found, but rather statements of what different witnesses
testified to during the twelve days of hearings before the HO. We believe that what
the HO and the HRO actually found as facts are located in their "conclusions of law,"
intermixed with their actual legal conclusions.

       Perhaps, given the 3000-page HO hearing transcript, it would be reasonable to
believe that both the HO and HRO were endorsing as findings the testimony that they
recited. But even if we were to draw that inference, nothing in the record indicates
that the HO and HRO believed different witnesses to be credible or believed that
different events occurred. In most instances, the HRO's "findings of fact" simply
rehearsed matters that were already acknowledged in the HO's "findings of fact."

       The HRO's "conclusions of law" also do not indicate that the HRO had a view
of any witness's credibility that differed from the HO's, as revealed by a close analysis
of the "conclusions of law" on which the HRO and the HO differed. Although two
of the HRO's conclusions speak of the "credible evidence," neither rested on the
existence of any fact that the HO did not acknowledge as well. Indeed, in our best
estimation, we interpret the phrase "credible evidence" in these two conclusions to
mean "evidence that suffices under the law." Consequently, we interpret the HRO's
statements such as "there is no credible evidence that these reviews ... failed to
adequately assess the appropriateness of the IEP" to mean only that he differed from
the HO with respect to the relevant legal conclusion, i.e., as to what constitutes an
adequate assessment of the appropriateness of the IEP, and not with respect to the
underlying facts.

       CJN has not challenged any specific legal conclusion of the HRO as erroneous
other than the HRO's ultimate determination that CJN had received a FAPE. He
argues generally that the HO's conclusions of law "are so imbued with credibility
determinations and educational expertise that they are owed significant deference,"
but this argument fails to recognize that the issue of whether a FAPE has been

                                          -6-
provided is a mixed question of law and fact, Strawn, 210 F.3d at 958, and
misapprehends the role of reviewing officers in two-tier administrative review
systems. With such mixed questions, the HRO is obligated to determine
independently the legal significance of the facts. That the HRO ultimately sided with
the District means neither that he necessarily believed the school authorities'
testimony more than the HO did nor that his analysis was incorrect. It means only
that the HRO reached a different conclusion based on his understanding of the law.
The district court did not err in giving "due weight" to the HRO's conclusion.

                                           III.
       CJN also challenges the district court's decision not to reimburse CJN for his
private school tuition. The IDEA provides that "[i]f the parents of a child with a
disability, who previously received special education ..., enroll the child in a private
elementary or secondary school without the consent of or referral by the public
agency, a court or a hearing officer may require the agency to reimburse the parents
for the cost of that enrollment if the court or hearing officer finds that the agency had
not made a [FAPE] available to the child in a timely manner prior to that enrollment."
20 U.S.C. § 1412(10)(C)(ii). The district court denied reimbursement pursuant to its
decision that CJN had received a FAPE prior to his enrollment. We review the
district court's determination that CJN received a FAPE de novo. Strawn, 210 F.3d
at 958. But in "the absence of a mistake of law, we review the district court's factual
determinations for clear error." Id.

       CJN maintains that the district court erred in holding that the District provided
him with a FAPE in his third-grade year based on academic progress alone. CJN
contends that evidence of academic progress is particularly irrelevant here "because
his disability does not adversely affect his ability to learn" academically. CJN points
to the amount of physical restraint to which he was subject and the high number of
"time-outs" imposed on him, arguing that they are fundamentally inconsistent with
the existence of a FAPE. CJN maintains that Minnesota law requires more positive

                                          -7-
behavioral reinforcement and more analysis of CJN's behavioral problems than CJN
received before he can be said to have received a FAPE.

       The District responds by stating that CJN's IEPs need to be analyzed at the time
of their adoption. It asserts that his IEP team consistently focused on CJN's
behavioral problems using the information that they had available, including a
functional behavior assessment and an occupational therapy evaluation. It contends
that CJN received positive behavioral interventions in the form of the token economy
system and point rewards system as well as sufficient personalized services, such as
the attention of a one-to-one paraprofessional. And it points to the fact that CJN was
progressing at an average rate academically.

       At the outset, we reject CJN's characterization of the district court's holding as
based on academic progress alone. Although the district court does state that "CJN
was learning within the average range in his academic subjects, thus demonstrating
educational progress," this statement came only after the court's observations that
"[w]ith CJN's behavioral challenges in mind, the team tailored the IEP to his needs"
and that "[a]t numerous meetings, CJN's IEP team was continually making efforts to
refine his instruction programs." We view the district court's acknowledgment of
CJN's academic progress to mean only that his IEP was managing CJN's behavioral
problems in a way that allowed him to learn. Cf. Indep. Sch. Dist. No. 284 v. A.C.,
258 F.3d 769, 777 (8th Cir. 2001). Academic progress, the Supreme Court has stated,
is an "important factor" in ascertaining whether a disabled student's IEP was
reasonably calculated to provide educational benefit. Rowley, 458 U.S. at 202.

       We also reject CJN's contention that because academic progress "has not been
identified as among C.J.N.'s educational needs," evidence of academic progress is
particularly irrelevant in CJN's case. As we recently noted in A.C., 258 F.3d at 776-
77, "at least in Congress's judgment, social and emotional problems are not ipso facto
separable from the learning process." Behavioral difficulties might impede learning

                                          -8-
ability even if the individual is not learning disabled. Id. The record squarely
supports the conclusion that that is the situation here. For instance, Dr. Ziegler's
report explains how frontal lobe activity is responsible for an individual's ability to
plan and affects his or her "flexibility, generation of information, inhibition of
impulses, and working memory." In relation to CJN, Dr. Ziegler states that "[w]hile
some skills associated with frontal lobe functioning are intact, it is clear that his
behavioral and emotional dysregulation and disinhibition associated with his frontal
striatal lesion can overwhelm these adequately developed skills to [the] point where
he is unable to utilize them in his school environment." Unlike the situation in A.C.,
258 F.3d at 777, where the student was falling behind despite the lack of a learning
disability, CJN has always progressed academically at an average rate. That his
behavioral difficulties are severe, as CJN contends, makes his academic progress even
more relevant to the educational benefit inquiry, because it demonstrates that his IEPs
were not only reasonably calculated to provide educational benefit, but, at least in
part, did so as well.

       When a disabled student has failed to achieve some major goals, it is difficult
to look back at the many roads not taken and ascertain exactly how reasonable his
IEPs were at the time of their adoption. Cf. Roland M. v. Concord Sch. Comm., 910
F.2d 983, 992 (1st Cir. 1990), cert. denied, 499 U.S. 912 (1991). But this difficulty
is precisely why we have recognized that "[a]s long as a student is benefiting from his
education, it is up to the educators to determine the appropriate educational
methodology." Fort Zumwalt, 119 F.3d at 614. Specific results are not required, 34
C.F.R. § 300.350 (b), and an IEP need not be designed to maximize a student's
potential "commensurate with the opportunity provided to other children," see
Rowley, 458 U.S. at 189-198. Thus, even assuming arguendo that more positive
behavior interventions could have been employed, that fact is largely irrelevant. The
record reveals that the District made a "good faith effort" to assist CJN in achieving
his educational goals. See 34 C.F.R. § 300.350(a)(2). Although it is true, as CJN
contends, that the District "offered only services available within its standardized

                                         -9-
programs for students with emotional and behavioral disorders," one can reasonably
conclude from this record that more did not appear necessary at the time to help him
progress behaviorally. Indeed, at the January IEP meeting, undisputed testimony
indicates that the District suggested a more structured setting as an alternative to
Whittier, but CJN's mother chose Whittier instead.

       We of course very much regret that CJN was subject to an increased amount
of restraint in his third-grade year, but that fact alone does not make his education
inappropriate within the meaning of the IDEA. In response to his difficulties, the
District made its suspension policy more lenient, suspending him only in the case of
physical aggression to adults, children, or property. We believe that this
demonstrates a good faith effort and comports, moreover, with a previous observation
of ours that schools' suspension policies toward disabled students must be
"appropriate in the context of the IEP." See A.C., 258 F.3d at 776. Because the
appropriate use of restraint may help prevent bad behavior from escalating to a level
where a suspension is required, we refuse to create a rule prohibiting its use, even if
its frequency is increasing.

      CJN contends that restraints and "time-outs" were used inappropriately here,
pointing to four purported violations of Minnesota rules governing behavioral
interventions. In analyzing these purported deficiencies, we note that minor
"procedural and technical deficiencies in the IEPs" cannot support a claim that a
FAPE has been denied. See S.D., 88 F.3d at 562; cf. Evans v. Dist. No. 17 of Douglas
County, Nebraska, 841 F.2d 824, 830-31 (8th Cir. 1988).

       As CJN correctly notes, under the IDEA a disabled student's IEP must "meet
the standards of the State educational agency." 20 U.S.C. § 1401(8)(B). Thus,
"[w]hen a state provides for educational benefits exceeding the minimum federal
standards set forth under Rowley, the state standards are ... enforceable through the



                                         -10-
IDEA." Blackmon ex rel. Blackmon v. Springfield R-XII Sch. Dist., 198 F.3d 648,
658 (8th Cir. 1999).

      First, CJN contends that his IEP was inappropriate because CJN was constantly
being restrained in emergency situations and his team failed to develop a behavioral
intervention program (BIP) that focused on skill acquisition. CJN argues that such
a BIP was required because Minnesota has chosen to exceed the federal requirements.

       Under the IDEA, IEP teams are required to consider positive behavioral
interventions where appropriate. 20 U.S.C. § 1414(d)(3)(B)(i). Under Minnesota
law, "[t]he objective of any behavioral intervention must be that pupils acquire
appropriate behaviors and skills. It is critical that [BIPs] focus on skills acquisition
rather than merely behavior reduction or elimination." Minn. R. 3525.0850. Neither
the district court nor the HRO explicitly addressed this Minnesota requirement,
although the HRO's decision arguably did so implicitly when it pointed to the
existence of positive reinforcement mechanisms such as the token economy system
in CJN's IEP.

       At the October IEP meeting, Ms. Schroeder had proposed a BIP that included
both positive reinforcement mechanisms as well as what is called conditional
procedures (e.g., time-outs and physical restraint). No BIP was adopted, however,
because of CJN's mother's disagreement with the proposal. They discussed the matter
again in November, at which time CJN's mother dismissed the team's suggestions as
counterproductive. In January, CJN's teacher at Whittier was in the process of
developing a plan, but CJN was withdrawn from her classroom before she finished
it. Heeding Rowley's warning that "courts must be careful to avoid imposing their
view of preferable educational methods upon the States," 458 U.S. at 207, and giving
"due weight" to the HRO's implicit decision of sufficiency, we do not believe that the
failure to develop a BIP could fairly be said to constitute a denial of a FAPE in these
circumstances.

                                         -11-
       CJN also contends that the number of IEP team meetings was insufficient in
view of a Minnesota rule providing that when conditional procedures are used in an
emergency situation "twice in a month or [when] a pupil's pattern of behavior is
emerging ... a team meeting must be called to determine if the pupil's IEP is adequate
... no later than five school days after emergency procedures have commenced."
Minn. R. 3525.2900, subp. 5C. The district court did not discuss this rule.

       This rule was violated if one views the five-day requirement as restarting with
every two emergency interventions. Conditional procedures were used on October
10, 11, and 12, but the only IEP meetings were on October 10 and November 14. We
need not, however, resolve the nuances of the rule's interpretation, because the record
reveals that any potential violation was immaterial. As we have already noted, CJN's
IEP team consistently addressed the use of conditional procedures in their IEP
meetings, but a BIP was not adopted because of his mother's disagreement. We
believe that the purpose of the relevant rule is to guarantee that the IEP team is aware
that conditional procedures have been employed and to allow the IEP team to develop
a BIP, because under Minnesota law conditional procedures can be used either in an
emergency situation or pursuant to a BIP (as part of an IEP), see id. subp. 5A(1).
That requisite awareness and the attempt to develop a BIP already existed here.
Failure to hold more meetings is immaterial.

      CJN points, in addition, to a state requirement that IEP teams identify "the
frequency and severity of target behaviors for which the conditional procedure is
being considered" before using conditional procedures. Id. This provision, however,
does not apply here, as it pertains only to conditional procedures resorted to as part
of a BIP and not to emergency situations like the ones in the instant case.

      CJN argues finally that "time-outs" of more than an hour violate state standards
per se, citing a state administrative decision that holds that"[s]eclusion for brief
periods may be defensible, but not confinement for one to six hours forcing a student

                                         -12-
into discomfort, making [the action at issue] a punitive, negative intervention" under
Minn. R. 3525.0850. Complaint File # 1408, p.16 (State Educ. Agency Minn.
March 29, 2002). But close analysis of the Minnesota Department of Children,
Families and Learning's statement in this file reveals that its conclusion was based
both on the duration of the "time-out" and the fact that the "time-out" room had no
place for the child to sit, which is not the situation here. Furthermore, the only time-
outs of more than an hour occurred in the seven half-days at Whittier. Any violation
of the State's rule would therefore be immaterial to a larger determination of whether
reimbursement was required. Cf. S.D., 88 F.3d at 562.

       We believe, moreover, that all the other purported deficiencies to which CJN
directs our attention, such as the absence of a specifically identified "Public Separate
Day School" in the March IEP (the IEP listed only the relevant setting level and not
a precise location) are equally immaterial to our discussion given the February
decision to enroll CJN in private school. Accordingly, the district court did not err
in determining that the District provided CJN with a FAPE in his third-grade year and
in denying CJN's mother's request for tuition reimbursement.

                                          IV.
       CJN next maintains that the district court erred by not ordering his prospective
placement at Calvin, since that school offers more interaction with children who are
not disabled than Crawford Academy, the currently proposed "Public Separate Day
School." We disagree.

       While it is true that the IDEA expresses a strong preference in favor of disabled
children attending regular classes with children who are not disabled, see 20 U.S.C.
§ 1412 (5) (1994), the Supreme Court has held that this creates a presumption in favor
of public school placement, see School Comm. of Burlington v. Department of Educ.
of Mass., 471 U.S. 359, 373 (1985). We have stated that the IDEA's objective is
satisfied when there are disabled students and students who are not disabled at the

                                         -13-
same school. Mark A. v. Grant Wood Area Educ. Agency, 795 F.2d 52, 54 (8th Cir.
1986), cert. denied, 480 U.S. 936 (1987). Because there are students who are not
disabled at Crawford, the district court did not err in failing to order Calvin as CJN's
prospective placement.

                                            V.
       CJN argues finally that the district court erred in determining that CJN was not
entitled to remain at Calvin pending a final determination on the merits of this appeal,
given the HO's decision that Calvin was the appropriate prospective placement.
Under the IDEA's so-called "stay-put" provision, "during the pendency of any
proceedings [under § 1415], unless the State or local educational agency and the
parents otherwise agree, the child shall remain in the then-current educational
placement of such child ... until all such proceedings have been completed."
20 U.S.C. § 1415(j). CJN's mother and the District reached an interim agreement that
the District would pay for CJN to attend Calvin until February 4, 2002, but they also
agreed that this agreement would not affect CJN's "stay-put" placement. The district
court held that CJN's mother was responsible for private school tuition after
February 4.

       CJN argues that the HO's decision in favor of CJN created an agreement to
change his "stay-put" placement. We disagree. We recognize that federal regulations
provide that "[i]f the decision of a hearing officer in a due process hearing conducted
by the [state education agency] or a State review official in an administrative appeal
agrees with the child's parents that a change of placement is appropriate, that
placement must be treated as an agreement between the State or local agency and the
parents for purposes of [stay-put placement]." 34 C.F.R. § 300.514 (c). But neither
of the alternative conditions for a stay-put agreement is met here. Under Minnesota
law, the HO decision is conducted by the school district, Minn. Stat. § 125A.09,
subd. 6, which is considered only a local education agency and not a state education
agency, see Minn. Stat. § 125A.09, subd. 7; 20 U.S.C. §§ 1401(15)(A), 1401(28). In

                                         -14-
the second tier of review, the state appoints an HRO, who conducts the review on
behalf of the commissioner of the state education agency. See Minn. Stat. § 125A.09,
subd. 9. Since the HRO denied private placement, there was no agreement to change
the stay-put placement here. The district court thus did not err in holding that there
was no agreement.

                                            VI.
       Judge Bye contends that we are holding that any school district necessarily
satisfies its duties to provide a student with a FAPE when a student with a behavioral
disability makes academic progress. That is not the case. As we said, academic
progress is an "important factor" among others in ascertaining whether the student's
IEP was reasonably calculated to provide educational benefit. Rowley, 458 U.S. at
202. We believe, as the district court did, that the student's IEP must be responsive
to the student's specific disabilities, whether academic or behavioral.

       Academic and behavioral matters, however, are not always independent of each
other. As we noted in A.C., 258 F.3d at 776-77, "social and emotional problems are
not ipso facto separable from the learning process." Where, as here, the record
indicates that a student's behavioral problems, if unattended, might significantly
curtail his ability to learn, the fact that he is learning is significant evidence that his
behavioral problems have, at least in part, been attended to. Of course, we wish that
CJN had made more behavioral progress, but the IDEA does not require that schools
attempt to maximize a child's potential, or, as a matter of fact, guarantee that the
student actually make any progress at all. It requires only that the student be provided
with an IEP that is reasonably calculated to provide educational benefit and we
conclude that that happened here.

      Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022 (8th Cir. 2003), does not cut
against our conclusion. In fact, it supports it. In that case, both the state
administrative panel and the district court held that the disabled student did not

                                           -15-
receive a FAPE because his IEPs did not appropriately address his behavioral
problems. Id. at 1026-28. On appeal, the school district argued that the panel and
district court had improperly discounted evidence that some academic progress had
been made. See id. at 1027-29. We noted that while there was "evidence of some
slight academic progress," the evidence was "contradicted by other evidence in the
record." See id. at 1029. For instance, we observed that every time the student's
"special education teacher advanced his work to [his current grade level], the stress
engendered resulted in behavioral problems that forced the teacher to readjust his
work [downward] to afford [the student] a measure of success." Id. at 1029. We were
therefore convinced that the administrative panel had not improperly discounted "the
evidence of de minimis academic and social progress where the panel pointed to
specific evidence in the record contradicting such a benefit and noted that any slight
benefit obtained was lost due to behavior problems that went unchecked and
interfered with his ability to obtain a benefit from his education." Id. This is in stark
contrast to the circumstances in the instant case where there is undisputed evidence
that CJN is progressing academically at an average rate, thus indicating, at the very
least, that his behavioral problems are being sufficiently controlled for him to receive
some educational benefit.

                                     VII.
      Accordingly, we affirm the judgment of the district court.

BYE, Circuit Judge, dissenting.

       The record in this case portrays a clear contrast. When the District adapted its
approach to meet CJN's unique needs, he made some progress on his behavioral
disabilities. But when the District expected CJN's behavior to conform to its
structured and inflexible approach, he began to self-destruct. Because the IDEA
requires the District to adapt to a child's "unique needs," 20 U.S.C. § 1400(d)(1),
rather than the child to the District's "normal" approach, I respectfully dissent.

                                          -16-
                                           I
       I start with a more-detailed explanation of this case's background, based upon
the findings of the independent hearing officer (HO).

        CJN was born on December 28, 1991. Between the ages of two and four, he
suffered from chronic upper respiratory infections and consistent high fevers. During
the 1994-95 winter season he experienced four seizures as a result of high fevers. In
1999 he began experiencing headaches. An MRI performed in February 2000
revealed lesions and atrophy in the right frontal lobe of his brain. CJN's brain injury
was most likely due to the previous infections, demyelination (nerve damage), or
possibly a stroke. The frontal lobe of the brain is associated with self-regulation
skills, such as the capacity to inhibit inappropriate behavior, and to control emotions.

      CJN's emotional problems began at an early age. When he started kindergarten
in February 1998 at Parkview Elementary School, he already had a history of
explosive outbursts at home, at pre-school, and at day care, where his behavior would
escalate to the point of threats and violence. His mother requested the District to
evaluate him for placement in special education, and he eventually was placed in
special education.

       CJN's behavior problems continued while at Parkview. Gary Berg, a District
employee identified as a "Behavior Person," worked with CJN through kindergarten
and first grade. In the beginning of his first grade year, CJN spent a great deal of time
in time-outs, which were unsuccessful in regulating his behavior. He was transferred
to another teacher and responded more favorably to a behavior program initiated by
Berg that utilized replacement behaviors and role-play instead of time-outs. In part,
Berg's system allowed CJN to signal when he felt he needed to be out of the
classroom. CJN would remove himself from the classroom, and sometimes go visit
with Berg, until CJN felt he was ready to return to the classroom.



                                          -17-
        During the summer between first and second grade, CJN received an
occupational therapy (OT) evaluation. The evaluation found CJN had excessive
tactile sensitivities (e.g., irritated by labels on clothing), was averse to grooming
activities, was overly active, had a moderate to high degree of sensory defensiveness
in his reactions to touch, sound, smell, and visual stimuli, and sometimes engaged in
self-injurious behavior. The evaluation recommended "calming activities" to
minimize CJN's chances of becoming over-stimulated and leading to an outburst.
These calming activities included heavy work to use the large muscles of his body,
such as carrying objects, moving furniture, or doing push-ups. The evaluation also
recommended oral activities, such as sucking thick substances through a straw, or
chewing gum.

       At the start of second grade (the 1999-2000 school year) CJN's condition
deteriorated. In October 1999 he was removed from school in mid-November while
his psychiatric medication was more aggressively introduced, and eventually
hospitalized for psychiatric care for nine days, followed by a three-week day-
treatment program. When he returned to school in March 2000, Berg suggested that
CJN attend a Special Elementary Needs (SPEN) classroom taught by Mary Thompson
at Marcy School. CJN spent March, April and May 2000 in Thompson's room, prior
to being hospitalized again in May. Ms. Thompson had some success with CJN,
describing him as "a beautiful child, very intelligent, very sensitive" but with "very
severe needs with lots of sensory issues, and some neurological processing issues."
HO Findings of Fact #42, Add. 13. CJN's placement with Thompson was followed
by a successful summer program at Washburn Child Guidance Center, which his
mother initiated. She privately hired Joseph Brown, a school district employee who
worked with CJN in Ms. Thompson's classroom, to be CJN's one-on-one aide during
the summer program.

     In third grade (2000-2001 school year), the Marcy School programs taught by
Ms. Thompson moved to Keewaydin School. CJN moved with Ms. Thompson to

                                        -18-
Keewaydin, and started third grade in her classroom. But after a few weeks, CJN
transferred to a special education classroom taught by Elana Schroeder. The District
gave two reasons for the transfer. First, the students in Ms. Thompson's classroom
were at a lower academic level than CJN (whose academic abilities were average but
impeded by his behavioral problems), and the students in Ms. Schroeder's classroom
were a closer fit academically for CJN. Second, after a successful spring and
summer, CJN's Individualized Education Plan (IEP) team believed he was ready for
more responsibility and structure.

       His condition quickly deteriorated in Ms. Schroeder's classroom. Despite the
prior failures of a time-out approach with CJN, Ms. Schroeder used only a time-out
system to handle CJN's behavioral problems. The District failed to implement the
mother's recommendations to use the calming techniques recommended in the OT
evaluation.     The District failed to implement a system with immediate
rewards/consequences for appropriate/inappropriate behavior, or the successful
approach used by Berg while CJN was in second grade. The District failed to
implement the mother's request for the one-on-one assistance that proved successful
during the summer of 2000. Essentially, Ms. Schroeder expected CJN to adapt
himself to her structured approach, rather than Schroeder adapting her approach to
meet CJN's special needs. The HO concluded "the Student was expected to fit into
the program and the program was not adjusted to meet the needs of the Student." HO
Conclusions #12, App. at 61.

       Ms. Schroeder apparently did not believe CJN was disabled, but, instead, a
manipulative and controlling child. In a phone call during the time CJN was in
Ms. Schroeder's classroom, Schroeder told CJN's mother that her claim of frontal lobe
brain injury was simply an excuse for allowing CJN to do what he wanted to do.

       The results of this combination (an educator who discredited the child's
disability and expected the child to conform his behavior to the teacher's "normal"

                                        -19-
approach rather than adjusting her approach to meet the child's unique behavioral
needs) were disastrous. CJN's outbursts worsened as a result of the use of time-outs,
and the seclusion he experienced. During a fourteen day period in September 2000,
CJN spent a part of seven days in seclusion after having been restrained. From
October 9 to November 13, CJN was restrained on more than half of all days, at a rate
eleven times greater than other students in Ms. Schroeder's class. CJN would
verbally abuse, kick, and spit at District personnel who restrained him. He would
threaten his teacher and other students by claiming he would bring a gun or knife to
school the following day. The District reached the point where they advised CJN's
mother it would resort to police intervention to deal with CJN's outbursts.

       On November 16, 2000, that is exactly what happened. With as much time as
CJN was spending at school in restraints or seclusion, he understandably would not
get off the bus the morning of November 16. He pushed and kicked staff and
threatened to kill them. He yelled and threatened peers, and wiped his mucus on
them. He continued his outburst after he got to Ms. Schroeder's classroom. Finally,
the police were called and removed this third grader from school.

       On December 6, 2000, CJN punched a District staff member in the lip. That
same day, Ms. Schroeder told CJN's mother that CJN was the problem, that Schroeder
had not wanted him in her classroom, and that she would continue to initiate police
intervention at every opportunity. The next day, CJN's mother requested an
independent evaluation of CJN, objected to police intervention to address his
disability-related behaviors while in school, and asked for a transfer to another
classroom. The district finally enrolled CJN in another SPEN classroom at Whittier
Elementary on January 16, 2001.

      CJN fared no better at Whittier. Whittier also utilized the ineffective time-out
system to address CJN's outbursts, with even more serious consequences. CJN
attended just seven days at Whittier. On four of those days he was locked in

                                        -20-
seclusion for excessive periods of time without any criteria for his release, without
his mother's consent or authority, and in direct opposition to the opinion of his current
mental health provider. Finally, on January 24, 2001, while in the locked seclusion
room, CJN attempted suicide by wrapping his shirtsleeve around his neck. The police
were summoned again, and removed this third grader from the school in handcuffs.
Thus, in five months, while the school used a time-out approach already shown to be
unsuccessful during CJN's first and second grades, all the behavioral progress CJN
made during the previous spring and summer had been replaced by suicidal ideations.
Frustrated with the District's failures, CJN's mother found a private school that could,
and did, meet her child's unique behavioral needs. By the time the HO held its
hearings in March and April of 2001, CJN had made significant progress at the
Calvin Academy. The Calvin Academy educators had not resorted to locked
seclusion or police intervention, the need for even short periods (less than five
minutes) of any restraint had substantially subsided, and CJN had less behavioral
outbursts at home and an increased interest in learning, friends, and school.

                                          II
       Three things concern me about the majority's decision. First and foremost,
notwithstanding its assertion to the contrary, I believe the majority decision
essentially holds the District can satisfy its duty to provide a FAPE so long as a
student with a behavioral disability makes academic progress. Such reflects a
myopic view of the purpose of the IDEA. The educational benefits of an IEP must
be reasonably calculated to address more than academic ability or disability. As we
stated in Indep. Sch. Dist. No. 284 v. A.C., 258 F.3d 769 (8th Cir. 2001):

      The IDEA clearly includes "emotional disturbance[s]" as disabilities. 20
      U.S.C. § 1401(3)(A). According to the Department of Education, an
      emotional disturbance is

             [A] condition exhibiting one or more of the following
             characteristics over a long period of time and to a marked

                                          -21-
            degree that adversely affects a child's educational
            performance:
            (A) An inability to learn that cannot be explained by
                  intellectual, sensory, or health factors.
            (B) An inability to build or maintain satisfactory
                  interpersonal relationships with peers and
                  teachers.
            (C) Inappropriate types of behavior or feelings
                  under normal circumstances.
            (D) A general pervasive mood of unhappiness or
                  depression.
            (E) A tendency to develop physical symptoms or
                  fears associated with personal or school
                  problems.

      34 C.F.R. § 300.7(c)(4)(i).

      Read naturally and as a whole, the law and the regulations identify a
      class of children who are disabled only in the sense that their abnormal
      emotional conditions prevent them from choosing normal responses to
      normal situations. See Honig, California Superintendent of Public
      Instruction v. Doe, 484 U.S. 305, 320, 108 S.Ct. 592, 98 L.Ed.2d 686
      (1988) (stating, of an emotionally disturbed student, that "[i]t is [the
      student's] very inability to conform his conduct to socially acceptable
      norms that renders him 'handicapped' within the meaning of the EHA").

258 F.3d at 775-76.

       Even more to the point, we recently decided Neosho R-V Sch. Dist. v. Clark,
315 F.3d 1022 (8th Cir. 2003), which addressed whether FAPE was provided to
Robert Clark, a child with behavioral and learning disabilities. We concluded that
"because the IEPs did not appropriately address his behavior problem, Robert was
denied a free appropriate public education." 315 F.3d at 1028 (emphasis added). We
also addressed whether the administrative hearing panel erred in discounting the
slight academic progress Robert had made. We concluded it had not:

                                       -22-
      Our review of the record convinces us that the panel did not err in
      discounting the evidence of de minimis academic and social progress
      where the panel pointed to specific evidence in the record contradicting
      such a benefit and noted that any slight benefit obtained was lost due to
      behavior problems that went unchecked and interfered with his ability
      to obtain a benefit from his education.

Id. at 1029 (emphasis added).

       As the majority correctly notes, academic progress may be an "important
factor" in ascertaining whether an IEP provides educational benefit, ante at 8 (citing
Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 203 (1982)), but it is
clearly not the only factor. The Supreme Court noted the limited nature of its holding
in Rowley, stating:

      One child may have little difficulty competing successfully in an
      academic setting with nonhandicapped children while another child may
      encounter great difficulty in acquiring even the most basic of self-
      maintenance skills. We do not attempt today to establish any one test
      for determining the adequacy of educational benefits conferred upon all
      children covered by the Act. . . . We do not hold today that every
      handicapped child who is advancing from grade to grade in a regular
      public school is automatically receiving a "free appropriate public
      education."

458 U.S. at 202, 203 n.25.

       Rowley also explained that Congress passed the IDEA, in part, so that
handicapped children could "achieve a reasonable degree of self-sufficiency" and
"become a contributing part of our society." Id. at 201 n.23. CJN has a behavioral
disability that qualifies him for individualized education under the IDEA, not a
learning disability. Thus, behavioral deficiencies, not learning deficiencies, are and
will be his obstacle to achieving a reasonable degree of self-sufficiency and

                                        -23-
contributing to society as an adult. His current ability to read, write, or multiply
simply is not the only issue. Therefore, the success of CJN's IEP cannot be measured
solely by the maintenance of his academic proficiency, but must include some
reference to progress in teaching him to control his behavior.

        If a child has a speech impediment that qualifies him for special education
services, we do not measure the educational benefit he derives from attending speech
therapy solely by his progress in math class. Or if a child qualifies for special
education because of a reading impairment, we do not measure the educational
benefit she derives from a remedial reading course by how well-behaved she is. And
if the student was well-behaved prior to receiving special education services, but her
IEP failed absymally to address her reading impairment, we would not conclude the
child received an educational benefit because she is still well-behaved.

       Likewise, we cannot address the propriety of CJN's IEP, or the District's
provision of a FAPE in this instance, solely by CJN's performance in math or English
or Geography. Rather, in determining whether the District provided a FAPE, we must
also determine whether CJN received any benefit from the District in learning to
control his behavior. Unlike Amy Rowley's IEPs, which were not and could not be
directed towards improving her hearing but merely ensuring that her deafness did not
stand in the way of an "adequate" education, Rowley, 458 U.S. at 210, the goals and
directives of CJN's IEPs were all directed towards teaching emotional, behavioral,
and social skills,2 not academics. The record is replete with evidence that the


         2
             For example, CJN's IPE dated October 10, 2000, contains the four following
goals:

         Goal 1: [CJN] will continue to improve his ability to maintain self-
         control and act appropriately in the school setting.

         Goal 2: [CJN] will improve his ability to complete work, comply with

                                            -24-
District's use of a time-out system to restrain and control CJN's behavior failed. The
District's approach to CJN's unique disability was counter-productive and actually
exacerbated his behavior problems. There is no evidence the time-out system and use
of restraints taught CJN to control his behavior. Nor is there evidence the District's
ultimate resort to police intervention would ever teach CJN how to become a
productive member of society.3

       Second, I am troubled by how easily the HO's findings and conclusions were
disregarded by the hearing review officer (HRO), the district court, and this court.
We can engage in a semantical debate about which portions of the HO's decision were
"findings of fact" and which were "conclusions of law." But the ultimate question
whether FAPE has been provided is a mixed question of law and fact, as the majority
recognizes. See ante at 7 (citing Strawn v. Missouri State Bd. of Educ., 210 F.3d 954,
958 (8th Cir. 2000)). In cases where a state has a two-tier administrative system, and
the courts are asked to review a conflict between the findings and conclusions of the
two tiers, I believe we should defer to the administrative body that actually had an



      requests, follow directions and participate appropriately in class
      activities.

      Goal 3: [CJN] will work toward independently solving problems in a
      positive manner by using common sense and anger management
      techniques.

      Goal 4: [CJN] will develop skills to build and maintain friendships and
      to recognize his own self-worth.
      3
        On this first point, I would add the following: the rapidity of CJN's decline
makes it abundantly clear that it was just a matter of time before CJN's academic
progress would have been affected by the District's approach to his behavioral
disability. At the end he was, after all, spending half his time outside the classroom
locked up, and so despondent that he attempted suicide.

                                        -25-
opportunity to observe the witnesses. See Fort Zumwalt Sch. Dist. v. Clynes, 119
F.3d 607, 610 (8th Cir. 1997).

       Our statement in Fort Zumwalt that a "court may choose to credit the hearing
panel's findings based on observations 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," id., states only half the equation. In Fort Zumwalt we were
faced with a conflict in which the first tier of the administrative process sided with
the professional educators, and the second tier against them. See id. at 611. If the
opposite had been true, as it is in this case, we might as easily have said a court may
choose to credit the hearing panel's dismissal of the views of the professional
educators, and reject the reviewing officer's analysis in their favor, based upon the
hearing panel's ability to observe the witnesses. In other words, our deference when
reviewing a conflict between the first and second tiers of an administrative process
should turn upon one tier's ability to observe the demeanor of the witnesses, not upon
whether the reviewing tier sides for or against the educators (i.e., does or does not
give sufficient weight to the views of professional educators). In this case, the HO
had the ability to observe the witnesses, not the HRO. The fact that the HO
discredited the views of the school authorities, while the HRO gave them more
weight (just the opposite of what occurred in Zumwalt) should not affect which
administrative body we defer to when reviewing a conflict between the two.

      Finally, I fear we allow Minnesota's education system to take a step backward
with our tacit approval of the District's use of restraint to cope with CJN's behavioral
outbursts. The HO concluded the District failed to comply with certain state
standards governing the use of punitive and aversive deprivation procedures.
Specifically, the HO found the District failed to comply with Minn. R. 3525.0850,
which requires that the "objective of any behavioral intervention must be that pupils
acquire appropriate behavior and skills. It is critical that behavioral intervention



                                         -26-
programs focus on skills acquisition rather than merely behavior reduction or
elimination."

       The HO also found the District failed to comply with Minn. R. 3525.1400,
which requires that pupils receive education in "an atmosphere that is conducive to
learning; and meet the child's special physical, sensory, and emotional needs." These
administrative rules were adopted pursuant to Minn. Stat. § 121A.67, which requires
the rules to "promote the use of positive approaches and must not encourage or
require the use of aversive or deprivation procedures."

       The District must meet the standards of the state's educational agency as an
integral part of providing FAPE. See Rowley, 458 U.S. at 203 (holding that
instruction and services "must be provided at public expense, must meet the State's
educational standards, must approximate the grade levels used in the State's regular
education, and must comport with the child's IEP" in order to qualify as FAPE)
(emphasis added); see also 20 U.S.C. § 1401(8)(B) (defining "free appropriate public
education" as "special education and related services that . . . meet the standards of
the State educational agency").

       The HO concluded that CJN "was trapped in an increasingly punitive approach
to disciplining, which resulted in increasing the levels of isolation, time-out and
locked seclusion." HO Conclusions #12, App. at 61. Neither the district court or
the HRO addressed the HO's conclusion that the district violated Minn. R. 3525.0850
& 3525.1400 with its "increasingly punitive approach to disciplining." Furthermore,
I find most disconcerting this court's attempt to explain away the District's violations
by suggesting that CJN's mother was the obstacle to the adoption of an appropriate
behavioral intervention program (BIP). My review of the record indicates that CJN's
mother opposed the BIPs suggested by the District precisely because they violated
Minnesota law.



                                         -27-
       I am discouraged by this court's tacit approval of the use of counter-productive
and punitive disciplinary measures. We are essentially telling school districts that it’s
copacetic to deal with students with behavioral disabilities by punishing them for
their disability, rather than finding an approach that addresses the problem. We also
tacitly approve the District's resort to police intervention for the behavioral problems
it helped create by failing to address CJN's unique behavioral disorder. That is
clearly not a message this court should dispatch.

      I commend CJN's mother for her wisdom in removing CJN from the destructive
downward spiral created by the District's inability to address her son's unique
educational, behavioral needs. She should now be reimbursed under the IDEA,
pursuant to 20 U.S.C. § 1412(10)(C)(ii), for her decision to enroll her son in a private
school capable of providing her son with an appropriate education.

      A true copy.

             Attest:

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




                                          -28-
