                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                              Nos. 99-1163/99-1288
                                  ___________

GRACE BLACKMON, a minor, by             *
and through her parent and next friend, *
W.D. Blackmon; W. D. BLACKMON;          *
JULIE BLACKMON,                         *
                                        *
               Appellees,               *
                                        *   Appeals from the United States
       v.                               *   District Court for the Western
                                        *   District of Missouri.
SPRINGFIELD R-XII SCHOOL                *
DISTRICT, Springfield, MO, and          *
its Board of Education                  *
                                        *
               Appellant,               *
                                        *
       -------------------------------- *
                                        *
MISSOURI COUNCIL OF                     *
ADMINISTRATORS OF SPECIAL               *
EDUCATION (MOCASE),                     *
                                        *
               Amicus Curiae on Behalf, *
               of Appellant,            *
                                        *
MISSOURI FAMILIES FOR                   *
EFFECTIVE AUTISM TREATMENT; *
ST. LOUIS LEARNING                      *
DISABILITIES ASSOCIATION,               *
                                        *
               Amici Curiae on Behalf.  *
               of Appellees.            *
                                    ___________

                           Submitted: September 17, 1999
                            Filed:    December 2, 1999
                                   ___________

Before McMILLIAN and MURPHY, Circuit Judges, and TUNHEIM,1 District Judge.
                          ___________

TUNHEIM, District Judge.

       Grace Blackmon (“Grace”) brought claims against the School District of
Springfield, R-12 (the “School District”) under the Individuals with Disabilities
Education Act, 20 U.S.C. §§ 1400 et seq. (the “IDEA”),2 alleging that the individual
education program (“IEP”) offered to her by the School District was not reasonably
calculated to provide her with a free, appropriate, public education. Grace’s parents
requested an impartial due process hearing for a determination of their claims pursuant
to 20 U.S.C. § 1415(f). The administrative hearing panel determined that the IEP
offered to Grace was appropriate, and further determined that the alternative IEP
advocated by Grace’s parents was inappropriate. The hearing panel also found that the
School District committed no procedural violations in developing an IEP for Grace.
Grace’s parents appealed the hearing panel’s decision to the United States District

      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota, sitting by designation.
      2
        Congress extensively revised the existing provisions of the IDEA in June 1997.
See Individuals with Disabilities Education Act Amendments of 1997, Pub. L. No.
105-17, 111 Stat. 37 (1997). Most of the revisions took effect on June 4, 1997, before
Grace and her parents filed their complaint, and a few of them became effective July 1,
1998, after Grace and her parents initiated this action but before the district court
entered its decision. See id. § 201(a). The revisions do not appear materially to affect
the issues raised on appeal.
                                          –2–
Court for the Western District of Missouri. The district court reversed the hearing
panel’s determinations on December 4, 1998 and ordered the School District to
reimburse Grace’s parents for their expenses in educating her. By Order dated January
6, 1999, the district court further awarded attorney’s fees to Grace and her parents.
The School District appeals from both of the district court’s orders. We reverse.

                                           I.

       Grace is a minor child born July 12, 1993 who at all times relevant to these
proceedings resided within the jurisdictional boundaries of the School District.
Physicians have diagnosed Grace as suffering from a severe, diffuse, bilateral brain
injury with hypotonic and autistic behaviors. The School District does not dispute that
Grace is developmentally disabled and thus entitled to the protections and benefits of
the IDEA.

       When Grace was approximately fifteen months old, her parents enrolled her in
a program designed to evaluate and treat her disabilities called the “First Steps”
program. The “First Steps” program is operated by the Springfield Regional Center,
a division of the Department of Mental Health, and is not in any way affiliated with the
School District. Under this program Grace received speech and occupational therapy
for four to five months, and received physical therapy for approximately ten months.
Grace’s parent’s describe the program’s approach as “traditional.” Although Grace
showed no significant improvement in fine motor skills based on the four to five months
of occupational therapy she received, she made improvements in other areas, including
significant progress in her gross motor skills.

      Grace’s parents were dissatisfied with her progress in the First Steps program
and discontinued her enrollment on September 6, 1995. They thereafter enrolled her
in an alternative program that they had been researching that is promoted by an
organization called the Institutes for the Achievement of Human Potential (the

                                          –3–
“Institutes”). The Institutes advocates an intensive, home-based training program
requiring individualized therapy taught by a child’s parents for twelve hours per day.
The Institutes’s program centers around the theory that stimulation of the brain, by
repetitious activity and increased supplies of oxygen and carbon dioxide, will facilitate
its growth. The Institutes’s methodology is controversial and has been criticized in a
number of medical journals.

       In order to enroll Grace in the program her parents traveled with her to
Philadelphia where the Institutes is located. The Institutes conducted an evaluation of
Grace and provided her parents with a plan for her development. The program
requires Grace’s parents to keep detailed records of her daily activities, and to travel
to Philadelphia for an assessment once every six months. Between visits, Grace’s
parents provide her with individualized therapy for twelve hours per day based on
techniques they have learned through the Institutes’s literature and through training
provided to them during visits to Philadelphia. Grace’s communication and gross
motor skills have improved significantly during her treatment under the Institutes’s
program, and her parents are satisfied with her progress.

        When Grace was three years old, and thus old enough to receive benefits under
the IDEA, her parents contacted the School District and requested that it pay for the
cost of training her under the Institutes’s program. The School District informed them
that it would need to evaluate Grace before making a determination regarding her
education placement. The School District thereafter scheduled an evaluation for Grace
and provided her parents with a copy of the procedural safeguards for parents and
children set forth under the IDEA, as required by 20 U.S.C. § 1415(d). The School
District put together a team of six employees who evaluated Grace and observed her
on two separate occasions. The evaluation included standardized testing, observing
Grace at school and in the home for several hours, a review of Grace’s medical records
and other documents provided to the school by Grace’s parents, and interviews with
Grace’s parents. At the conclusion of the evaluation process, the School District

                                          –4–
produced a twenty-five page “diagnostic summary” of Grace’s health, skills and
abilities. Although Grace’s parents disagreed with parts of the diagnostic summary,
and although they were aware of their statutory right to request an independent
evaluation of Grace, see 20 U.S.C. § 1415(b)(1), they did not seek an independent
evaluation or request that the School District otherwise reevaluate her.

       After completing Grace’s diagnostic summary, the School District held a
conference with her parents to review the diagnostic summary and to develop an IEP
for her. Grace’s parents and five School District employees attended the conference,
which was held on December 10, 1996. Prior to the meeting, the School District
prepared a proposed IEP for Grace with sections pertaining to Grace’s “present level
of performance” and “goals and objectives” tentatively completed. At the meeting, the
School District went through each of these sections item-by-item with Grace’s parents
and asked them whether they agreed with the proposed statements. Grace’s parents
in general indicated their agreement.

       The School District then engaged in a discussion with Grace’s parents about her
appropriate placement. The School District indicated that it recommend Grace be
placed in a “reverse mainstream” classroom3 and that she additionally receive
individualized speech, occupational and physical therapies. In addition to this option,
the School District also discussed with Grace’s parents the possibility that the School
District would provide Grace with in-home individualized training, as well as the
proposal that Grace’s parents advocated, namely, that the School District reimburse
them for Grace’s in-home training through the Institutes. The School District
nevertheless rejected these options because they would not provide Grace with the
ability to interact with other children.



      3
       A “reverse mainstream” classroom is one containing a majority of
developmentally disabled children, and a minority of children with “normal” abilities.
                                         –5–
       When Grace’s parents learned of the School District’s recommendation they
became upset and left the IEP meeting before a discussion of Grace’s placement could
be completed. In a letter to the School District dated December 25, 1996, Grace’s
parents revealed that they were upset because the School District did not recommend
the Institutes’s program, stating:

      [W]e thought the evaluators were simply going through the formalities
      before announcing that they thought our work with the Institutes was the
      ideal educational plan for Grace and we had their total support. . . . So,
      when the evaluators recommended the same program (we’re pretty
      confident of this) for Grace they would have recommended before ever
      meeting us, we were totally outraged (and still are).

(Appellant’s App., at 257.)

       The School District provided Grace’s parents with a written statement on
December 11, 1996 confirming its decision to offer Grace education in a reverse
mainstream classroom along with individualized speech, occupational and physical
therapies. The School District further provided Grace’s parents with another notice of
the procedural safeguards under the IDEA. Subsequent efforts to resolve the
differences between the School District and Grace’s parents were unsuccessful. On
December 20, 1996, the School District held an informal resolution conference with
Grace’s parents at its administrative offices that did not result in an agreement between
the parties.

        On January 3, 1997, Grace’s parents exercised their rights under the IDEA to
request an impartial due process hearing. In accord with Missouri state law, Mo. Rev.
Stat. § 162.961, the hearing panel was comprised of three individuals with knowledge
or training involving children with disabilities. Under the terms of the Missouri statute,
the School District selected one member, Grace’s parents selected another member,
and the Missouri Department of Elementary and Secondary Education appointed an

                                           –6–
attorney to serve as the chairperson. Separate counsel represented both the School
District and Grace’s parents at the hearing, and both parties submitted expert testimony
and other evidence for the panel’s consideration.

       During the due process hearing, Grace’s parents raised as issues for the hearing
panel’s consideration whether the School District’s proposed IEP met the requirements
of the IDEA, whether their alternative IEP met the requirements of the IDEA, the
amount that the School District should be required to reimburse them for Grace’s
education, if any, and whether the School District should pay the attorney’s fees that
they had expended. Grace’s parents did not challenge the School District’s compliance
with the IDEA’s procedural requirements. Indeed, their attorney explicitly volunteered:

      I want to say to you gentlemen that the parents through their counsel has
      [sic] told the School District that they do not want this panel to decide this
      matter in favor of their child because of the School District’s procedural
      violations, rather they want the decision based upon the merits of the IEPs
      put before them.

Later, counsel for the School District directly asked counsel for Grace’s parents, if he
did not intend to raise procedural issues in the case, whether he intended on behalf of
Grace’s parents to waive any violations that he perceived to exist. Counsel for Grace’s
parents responded, “I will.” Based on these statements, the hearing panel determined
that Grace’s parents had waived any procedural violations that might exist. The
hearing panel further determined that Grace’s parents had presented no evidence of
procedural violations. The hearing panel issued its decision against Grace’s parents
and in favor of the School District on all issues on September 12, 1997.

                               II. Standard of Review

      The IDEA permits aggrieved parties to seek review of an administrative hearing
panel’s decision by bringing a civil action in federal district court. See 20 U.S.C. §

                                           –7–
1415(i)(2)(A). On review, the district court must take into consideration not only the
records of the administrative proceedings, but also any additional evidence submitted
by the parties. See 20 U.S.C. § 1415(i)(2)(B). While the district court should make
an independent determination of the issues based on a “preponderance of the
evidence,” 20 U.S.C. § 1415(i)(2)(B)(iii), the Supreme Court has emphasized that the
district court must afford the administrative proceedings “due weight.” Board of Educ.
v. Rowley, 458 U.S. 176, 206 (1982). The district court’s standard of review is less
deferential than that applied under the substantial evidence test that courts ordinarily
apply in federal administrative law cases, however, a district court must give
consideration “to the fact that the state hearing panel has had the opportunity to observe
the demeanor of the witnesses.” Fort Zumwalt Sch. Dist. v. Clynes, 119 F.3d 607, 610
(8th Cir. 1997), cert. denied, 118 S. Ct. 1840 (1998). Moreover, courts may not
“substitute their own notions of sound educational policy for those of the school
authorities which they review.” Rowley, 458 U.S. at 206. This is because, as the
Rowley court admonished, “courts lack the ‘specialized knowledge and experience’
necessary to resolve ‘persistent and difficult questions of educational policy.’” 458
U.S. at 208 (quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 42
(1973)); see also E.S. v. Independent Sch. Dist., No. 196, 135 F.3d 566, 569 (8th Cir.
1998) (stating that judicial review under the IDEA is limited because “judges are not
trained educators”).

       Whether a school district’s IEP complies with the requirements of the IDEA is
a mixed question of fact and law. See E.S., 135 F.3d at 569. On appeal the standard
of review of the district court’s ultimate decision is de novo. See id.; Fort Zumwalt,
119 F.3d at 611. In the absence of a mistake of law, we review the district court’s
determination for clear error. See E.S., 135 F.3d at 569.

                               III. Procedural Claims

A.    Waiver

                                           –8–
       Grace’s parents argued to the district court that the School District deprived
them of their procedural rights under the IDEA by failing to afford them an opportunity
to participate equally in the development of Grace’s IEP at the IEP meeting. The
district court sustained their challenge and reversed the hearing panel’s determination
that the School District committed no procedural violations in handling Grace’s claims.
In so doing, the court rejected the School District’s argument that Grace waived any
existing procedural claims at the administrative due process hearing. The court
acknowledged that Grace’s counsel “did profess to waive ‘procedural violations’ in his
opening statement at the due process hearing.” Nevertheless, the court noted that in
a post-hearing brief Grace’s counsel argued that he did not intend to waive all
procedural issues, but only procedural “technicalities,” such as forms of notice, dates,
times and places of the due process proceedings. Upon reviewing the administrative
record the court also found that Grace’s parents offered testimony at the due process
hearing regarding the conduct of school district personnel during the IEP meeting. The
court determined that this testimony was inconsistent with the hearing panel’s
conclusion that Grace’s parents waived procedural objections to the manner in which
the School District conducted the meeting. We disagree.

       It is difficult to imagine how Grace’s counsel could have set forth her parents’
intent to waive their procedural objections more clearly. Counsel’s broad declaration
that Grace’s parents sought a determination based only on the merits of the proposed
IEPs undermines his post-hoc attempt after the hearing to narrow the scope of the
waiver to matters of a more technical nature. Moreover, the testimony that Grace’s
parents presented at the hearing, when interpreted in light of counsel’s explicit waiver,
amounts to no more than background evidence relating to their substantive challenge
to the proposed IEP’s. The basic issues that they raised before the hearing panel for
determination did not include a procedural challenge. Thus, we conclude that Grace’s
parents did not properly raise at the administrative level the issue of whether the School
District permitted them to participate sufficiently in the development of her IEP.

                                           –9–
        This failure is significant, because under well-established judicial interpretations
of the IDEA Grace had an obligation to exhaust her administrative remedies with
regard to the issues upon which she seeks judicial review. See 20 U.S.C. §
1415(i)(2)(A) (stating that a party aggrieved by the due process hearing panel’s
decision has the right to bring a civil action “with respect to the complaint presented”);
see also, e.g., Honig v. Doe, 484 U.S. 305, 326-27 (1988); Independent Sch. Dist. No.
283 v. S.D., 88 F.3d 556, 560 (8th Cir. 1996); Urban v. Jefferson County Sch. Dist. R-
1, 89 F.3d 720, 724 (10th Cir. 1996); Babicz v. School Bd., 135 F.3d 1420, 1422 (11th
Cir. 1998), cert. denied, 119 S. Ct. 53 (1998); Garro v. Connecticut, 23 F.3d 734, 737
(2nd Cir. 1994); Family & Children’s Center, Inc. v. School City of Mishawaka, 13
F.3d 1052, 1056 (7th Cir. 1994), cert. denied, 513 U.S. 961 (1994); Crocker v.
Tennessee Secondary Sch. Athletic Ass’n, 873 F.2d 933, 935 (6th Cir. 1989)
(interpreting the IDEA’s precursor, the Education of the Handicapped Act). The
exhaustion requirement permits agencies “to exercise discretion and apply their
expertise, . . . allow[s] complete development of the record before judicial review, . .
. prevent[s] parties from circumventing the procedures established by Congress, and
. . . avoid[s] unnecessary judicial decisions by giving the agency an opportunity to
correct errors.” See Urban, 89 F.3d at 724. The Tenth Circuit in Urban applied the
exhaustion rule to bar a claim similar to the challenge raised here, asserting that a
school district violated the IDEA’s procedural requirements by failing to afford a
child’s parents adequate participation rights in the development of his IEP. Id.

      Because Grace did not properly submit this claim for the hearing panel’s
determination, it is barred unless an exception to the exhaustion rule applies. Courts
recognize only three exceptions to the exhaustion requirement, including futility,
inability of the administrative remedies to provide adequate relief, and the
establishment of an agency policy or practice of general applicability that is contrary
to law. See id. None of these exceptions applies to Grace’s claim against the school
district. Grace has offered no evidence demonstrating that her administrative remedies
would have been futile or inadequate, nor has she shown that the school district was

                                           –10–
acting on a general policy of developing IEPs without adequate parental participation.
For these reasons we find that Grace waived her procedural claim explicitly during the
administrative due process hearing, and furthermore, that she failed to exhaust her
administrative remedies with regard to this claim. Her claim is barred for these
reasons.

B.    Procedural Compliance

       Even assuming that Grace’s parents had properly raised their procedural
objection to the administrative hearing panel, the record does not support the district
court’s conclusion that the School District’s IEP should be set aside on the ground that
it deprived Grace’s parents of their procedural rights. Procedural deficiencies in the
development of a child’s IEP warrant rejecting the IEP only if they “compromised the
pupil’s right to an appropriate education, seriously hampered the parent’s opportunity
to participate in the formulation process, or caused a deprivation of educational
benefits.” S.D., 88 F.3d at 562 (internal quotations omitted). Such circumstances are
not present in this case.

      Grace’s parents concede that the School District provided them with proper
notice of their procedural rights under the IDEA, that it gave them sufficient
opportunities to review Grace’s records, that it provided them with notice of the IEP
meeting’s date and purpose, that it invited them to attend that meeting, and that they
signed the IEP, either before or after the meeting, to indicate their participation in
developing it.

       They nevertheless assert that the School District failed to provide them with a
meaningful opportunity to participate in the development of Grace’s IEP. They
specifically contend that the School District inappropriately drafted Grace’s IEP in their
absence, that they did not subjectively understand the purpose of the IEP meeting, and


                                          –11–
that the School District imposed its proposal on them at the IEP meeting as passive
listeners without soliciting their input.

       The record does not support reversing the hearing panel’s decision on these
grounds. The fact that the School District developed an unfinished draft of Grace’s IEP
in advance of the meeting is not cause for concern, as nothing in the IDEA or its
regulations prohibits a school district from coming to an IEP meeting with tentative
recommendations for its development prepared in the parents’ absence. See 34 C.F.R.
pt. 300 app. C ¶ 55 (stating that although it is not permissible for an agency to finalize
the IEP before the IEP meeting begins, the agency may come to the meeting prepared
with proposals as long as the parents are informed at the outset that they are merely
recommendations for review and discussion). Moreover, the record shows that School
District personnel reviewed the pre-drafted “present level of performance” and “goals
and objectives” sections of the IEP with Grace’s parents carefully and asked whether
they agreed with the statements contained therein.

      Grace’s parents argue that they did not understand that in giving their agreement
they were participating in the development of her IEP. This misunderstanding is
unfortunate, however, Grace’s parents have not shown that it was caused by any
wrongdoing on the part of the School District. When, as in this case, a school district
provides parents with proper notice explaining the purpose of the IEP meeting, the
meeting is conducted in a language that the parents can understand, see 34 C.F.R. §
300.345(e), the parents are of normal intelligence, and they do not ask questions or
otherwise express their confusion about the proceedings, the school district’s failure
to apprehend and rectify that confusion does not constitute a violation of the IDEA’s
procedural requirements.

     More importantly, the main point of contention between Grace’s parents and the
School District arises not from the development of the “present level of performance”
and “goals and objectives” portions of her IEP, but from the School District’s

                                          –12–
placement recommendation. Grace’s parents admit that they did not attend the IEP
meeting with the expectation that the parties would consider the available options and
develop a plan for Grace together, but rather, with the expectation that the School
District without discussion would agree to reimburse them for their costs in educating
Grace at home through the Institutes’s program. Their disillusionment upon learning
that the School District recommended a different course of action angered them and
they abruptly terminated the meeting before the parties could reach a resolution to their
conflicting proposals. In so doing, Grace’s parents truncated their own procedural right
to contribute to the development of her IEP. The School District cannot be faulted for
failing to engage in an open discussion with Grace’s parents about alternative options
for her placement, when the parents themselves refused to participate in a discussion
with the School District at the first hint of disagreement with the plan they advocated.



       A school district’s obligation under the IDEA to permit parental participation in
the development of a child’s educational plan should not be trivialized. See Rowley,
458 U.S. at 205-06 (“It seems to us no exaggeration to say that Congress placed every
bit as much emphasis on compliance with procedures giving parents and guardians a
large measure of participation at every stage of the administrative process . . . as it did
upon the measurement of the resulting IEP against a substantive standard.”).
Nevertheless, the IDEA does not require school districts simply to accede to parents’
demands without considering any suitable alternatives. In this case, the record shows
that the School District considered both the possibility of providing Grace with in-home
instruction and the possibility of reimbursing her parents for the cost of educating her
at home through the Institutes, but rejected these options on the ground that they would
not provide her with sufficient interaction with other children. The School District’s
adherence to this decision does not constitute a procedural violation of the IDEA
simply because it did not grant Grace’s parents’ request. For these reasons we agree
with the hearing panel’s determination that the School District did not deprive Grace’s
parents of their procedural rights.

                                          –13–
                              IV. Substantive Claims

A.    Burden of Proof

       At Grace’s administrative due process hearing the School District had the burden
of proving that its proposed IEP would satisfy the requirements of the IDEA and
provide Grace with a free appropriate public education. See E.S., 135 F.3d at 569. On
appeal to the federal courts, however, Grace and her parents have the burden of proof
because they are challenging the outcome of the administrative hearing panel’s
decision. See id. In order to obtain reimbursement for the costs of educating Grace
privately through the Institutes’s program, Grace’s parents must demonstrate that (1)
the School District’s proposed IEP would not have provided Grace with a free
appropriate public education; and (2) the Institutes’s program complied with the IDEA.
See Fort Zumwalt, 119 F.3d at 611.

B.    The IDEA’s Substantive Requirements

       School districts that accept federal funds under the IDEA must provide each
qualifying disabled child within their jurisdictions with a “free, appropriate public
education.” 20 U.S.C. §§ 1400(d)(1)(A), 1412(a)(1)(A). A school district must tailor
such education to meet the unique needs of each disabled child, see 20 U.S.C.
§ 1400(d)(1)(A). A school district addresses this goal through the development of an
IEP for each child setting forth her present level of performance, annual goals and
objectives, specific services to be provided, an explanation of the extent to which she
will not receive education with nondisabled children, a statement of modifications to
district-wide assessment procedures needed in order for her to participate in such
assessments, transition services needed, the projected dates and duration of proposed
services, and objective criteria and evaluation procedures. See 20 U.S.C. § 1414(d).




                                         –14–
       Although the IDEA mandates individualized “appropriate” education for
disabled children, it does not require a school district to provide a child with the
specific educational placement that her parents prefer. See E.S., 135 F.3d at 569. Nor
does the IDEA require a school district to “either maximize a student’s potential or
provide the best possible education at public expense.” Fort Zumwalt, 119 F.3d at 612.
The purpose of the IDEA is “more to open the door of public education to handicapped
children on appropriate terms than to guarantee any particular level of education once
inside.” Rowley, 458 U.S. at 192. The IDEA’s requirements thus are satisfied when
a school district provides individualized education and services sufficient to provide
disabled children with “some educational benefit.” Id. at 200.

       Nonetheless, the IDEA defines the “free appropriate public education” that a
school district must provide to include instruction and services that meet state
educational standards. See 20 U.S.C. § 1401(8)(B); Rowley, 485 U.S. at 203. When
a state provides for educational benefits exceeding the minimum federal standards set
forth under Rowley, the state standards are thus enforceable through the IDEA. See
Johnson v. Independent Sch. Dist. No. 4, 921 F.2d 1022, 1029-30 (10th Cir. 1990),
cert. denied, 500 U.S. 905 (1991); Burke County Bd. of Educ. v. Denton, 895 F.2d
973, 982-83 (4th Cir. 1990); Board of Educ. of East Windsor Reg’l Sch. Dist. v.
Diamond, 808 F.2d 987, 992 (3rd Cir. 1986); David D. v. Dartmouth Sch. Comm., 775
F.2d 411, 418 (1st Cir. 1985), cert. denied, 475 U.S. 1140 (1986). Several courts
accordingly have determined that higher state educational standards are applicable to
a student’s IDEA claim brought in that state. See Burke, 895 F.2d at 982-83
(interpreting North Carolina law); Diamond, 808 F.2d at 992 (interpreting New Jersey
law); David D., 775 F.2d at 418 (interpreting Massachusetts law). But see O’Toole v.
Olathe Dist. Sch. Unified Sch. Dist. No. 233, 144 F.3d 692, 701 (10th Cir. 1998)
(holding that Kansas law does not provide for a heightened standard); Johnson, 921
F.2d at 1029-30 (holding that Oklahoma law does not provide for a heightened
standard).


                                        –15–
        Grace’s parents argue that Missouri state law requires school districts to provide
instruction and services sufficient to maximize the capabilities of disabled children.
Grace’s parents raise the issue of whether Missouri law establishes a higher educational
standard than the federal standard set forth in Rowley for the first time on appeal.
Although the district court speculated sua sponte that a higher standard might apply,
the court ultimately declined to resolve the issue and applied the rule set forth in
Rowley to Grace’s claims. Because Grace’s parents did not properly raise this issue
before the district court and the district court did not decide it, we decline to consider
it for the first time on appeal. See von Kerssenbrock-Praschma v. Saunders, 121 F.3d
373, 377-78 (8th Cir. 1997) (declining to consider argument regarding standard of
review applicable to Missouri state statute, because district court did not address it);
Barone v. Rich Bros. Interstate Display Fireworks Co., 25 F.3d 610, 611 n.2 (8th Cir.
1994), cert. denied, 513 U.S. 948 (refusing to consider claim raised for the first time
on appeal). We accordingly address Grace’s claims under the Rowley standard.

C.    Sufficiency of the School District’s Proposed IEP

       The School District challenges the district court’s determination that its proposed
IEP is not reasonably calculated to offer Grace a free appropriate public education as
defined in Rowley. The School District argues that in reversing the unanimous decision
of the hearing panel, the district court failed to give its findings “due weight,” and
instead substituted the court’s own notions of sound educational policy. We agree.

       The district court relied heavily on the results of Grace’s therapy through the
First Steps Program in making its determination. The district court noted that both the
School District’s proposed program and the First Steps program employed “traditional
therapies.” Asserting that Grace benefitted minimally from the First Steps program as
compared to her progress in the Institutes’s program, the district court concluded that
Grace would be capable of making only trivial progress under the School District’s
IEP. Thus, although Grace never received instruction in the School District’s proposed

                                          –16–
program, the district court concluded that she could not benefit from that instruction
because she allegedly failed to progress in a completely separate program utilizing
similar methodology.

       This analysis is flawed for several reasons. The district court’s conclusion that
Grace made little progress in the First Steps program is of questionable accuracy. The
record demonstrates that although she made little to no progress in developing her fine
motor skills as a participant in this program, her gross motor skills improved
significantly. Moreover, gauging the sufficiency of Grace’s progress in the First Steps
program by comparing it to her progress in the Institutes’s program is inappropriate.
Under the applicable standard, the School District must only provide Grace with “some
educational benefit” and need not give her the best education possible. See Rowley,
458 U.S. at 200. Thus, whether Grace’s progress in the Institutes’s program would
exceed her progress under more traditional therapies is irrelevant. Furthermore, the two
programs are not comparable. As a participant in the First Steps program Grace
received therapy for only 120 minutes per week, while under the Institutes’s program
she received instruction for 12 hours per day. Any increases in Grace’s progress under
the Institutes’s program therefore could be attributed solely to the amount of
instruction she received.4

       Moreover, even assuming that the Grace made no progress whatsoever in the
First Steps program, such a failure would not be indicative of Grace’s potential
progress under the School District’s proposed plan. The School District’s IEP would
have provided Grace with 720 minutes of instruction per week, in comparison with the
120 minutes offered to her in the First Steps program. The School District’s program
further would have given Grace a kind of classroom instruction with individualized
goals that the First Steps program did not provide. Also, because the School District’s


      4
       Grace’s parents concede that the IDEA does not require the School District to
provide Grace with instruction for twelve hours per day.
                                         –17–
program is not connected with the First Steps program, Grace would have learned from
different instructors and therapists under the School District’s plan who would have
employed different skills and techniques. The only concrete similarity between the
First Steps program and the School District’s IEP is that both programs implemented
some of the same traditional methodologies. In rejecting these “traditional” methods
in favor of the Institutes’s techniques, the district court imposed its own theories of
education on the School District and rejected the significant expertise of school
authorities and hearing panel members.

       The court also criticized the School District on the ground that it based the IEP
on an inadequate diagnostic evaluation of Grace. The district court concluded that the
School District’s team of evaluators spent too little time observing Grace, and that they
inaccurately administered one of the tests upon which Grace’s diagnostic summary was
based. In making these observations the district court failed to acknowledge that the
School District notified Grace’s parents of their statutory right to request an
independent evaluation of Grace, and that they expressly declined to exercise that right.
Because they chose not to seek a reevaluation of Grace, they cannot now be heard to
complain about the manner in which the school district evaluated her.

       In further support of its decision the district court credited the testimony of
Grace’s parents and of expert witnesses testifying on her behalf, and rejected the
contradictory testimony of the school district’s employees and experts. In making this
assessment the district court reviewed a dry record consisting only of the transcript of
Grace’s due process hearing, various documents and exhibits submitted at the hearing,
and supplemental deposition transcripts submitted directly to the district court. Despite
the fact that the district court had no first-hand opportunity to hear any of the testimony
it was evaluating, it found more credible the expert opinions submitted by Grace’s
parents because some of the school district’s witnesses were concurrently or previously
employed by the school district, and because others had not had an opportunity to
examine Grace. In so doing, the district court ignored this Court’s admonition in

                                          –18–
Zumwalt that a district court should give consideration to “the fact that the state hearing
panel has had the opportunity to observe the demeanor of the witnesses.” 119 F.3d at
610. We find that the district court should have given greater weight to the hearing
panel’s decision, and thus credited the testimony of the school district’s experts who
testified that the School District’s proposed IEP is reasonably calculated to provide
Grace with a free, appropriate public education. We accordingly reverse the district
court’s decision.

D.    Sufficiency of the Institutes’s Program

       Because we find that the School District’s proposed IEP satisfies the IDEA’s
substantive requirements, we need not address the sufficiency of the Institutes’s
program. See Zumwalt, 119 F.3d at 611 (requiring parents who seek reimbursement
for private placement to prove both that the school district has not offered a free
appropriate public education, and that the private placement is in compliance with the
IDEA). We nevertheless note that Grace’s instruction through the Institutes fails to
satisfy one of the primary objectives set forth in the IDEA, namely, to educate disabled
children in a classroom along with children who are not disabled to the maximum
extent possible. See 20 U.S.C. § 1412(5)(A); see also Rowley, 458 U.S. at 202 (noting
that the statutory language reflects a “mainstreaming preference”); S.D., 88 F.3d at 561
(finding that the statutory language gave rise to a presumption in favor of the
defendant’s placement in the public schools). This policy does not mandate placement
with non-disabled children when a child is so severely disabled that such placement
would not provide an educational benefit, see 20 U.S.C. § 1412(5)(A), however, we
have already determined that School District’s proposed placement of Grace in a
reverse mainstream classroom would have provided her with an appropriate education.
We accordingly conclude that the Institutes’s program is not in compliance with the
IDEA because it does not offer her an education in the least restrictive environment.




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                           V. Attorney’s Fees and Costs

       The district court awarded Grace and her parents their attorney’s fees and costs
on the ground that they were the prevailing parties in this action. Because we reverse
the district court’s determination of appellee’s IDEA claims we also reverse the district
court’s award of attorney’s fees.

                                   VI. Conclusion

       The judgments entered on appellee’s IDEA claim and motion for attorney’s fees
and costs are reversed, and the case is remanded to the district court with directions to
reinstate the decision of the administrative hearing panel.



A true copy.

  ATTEST:

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




                                          –20–
