In the
United States Court of Appeals
For the Seventh Circuit

No. 01-3673

Beth B. and Susan and Tom B.,
individually and as next friends
of Beth B.,

Plaintiffs-Appellants,

v.

Mark Van Clay, individually
and in his official capacity as
superintendent, and Lake Bluff
School District # 65,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 4771--James B. Moran Judge.

Argued January 17, 2002--Decided March 5, 2002



  Before Flaum, Chief Judge, and Bauer, and
Easterbrook, Circuit Judges.

  Flaum, Chief Judge. Thirteen-year-old
Beth B. and her parents appeal the
district court’s grant of summary
judgment to the Lake Bluff School
District, affirming an administrative
decision that upheld the school
district’s recommendation to place Beth
in a special education classroom. Beth is
severely mentally and physically
challenged. Her parents have long been
fighting a battle to keep her in the
regular education classroom: In 1997, the
school district first recommended that
Beth continue her schooling in a special
education, or Educational Life Skills
("ELS"), program--a placement with which
her parents disagreed. When it became
clear that they and the district could
not reach a mutually satisfactory
solution, they requested a due process
hearing under sec.1415(f) of the
Individuals with Disabilities Education
Act ("IDEA," or "the Act"), 20 U.S.C.
sec.1400 et seq. The hearing commenced on
October 25, 1999; in May 2000, the
hearing officer ruled in favor of the
school district. Beth’s parents sought
review in the district court and, on
September 10, 2001, the court affirmed
the hearing officer’s conclusion,
granting Lake Bluff’s motion for summary
judgment. Beth and her parents now appeal
to us. We recognize the difficult
decisions that Beth’s parents face, and
we appreciate the care and commitment
with which they participate in their
daughter’s education. However, after
looking to the language of the IDEA and
the congressional intent behind it, we
conclude that the school district’s
placement does not violate the Act. For
the reasons stated herein, we affirm the
decision of the district court.

I.   Background

  Beth has Rett Syndrome, a neurological
disorder that almost exclusively affects
girls. It results in severe disabilities,
both cognitive and physical. Beth is
nonverbal; she uses an instrument called
an eye gaze, a board with various
pictures and symbols that she singles out
with eye contact, to communicate her
wants and needs, as well as other
communication devices that allow her to
choose among symbols or to hear messages
recorded by others. She relies on a
wheelchair for mobility. She, like nearly
all Rett sufferers, has an extreme lack
of control over body movement. Although
her mental capacity is difficult to
assess precisely, due to her extreme
communicative and motor impairments, some
experts contend that she has the
cognitive ability of a twelve-to-
eighteen-month old infant. Others
estimate that she has the ability of a
four-to-six-year old. She is unable to
read or recognize numbers.

  Beth has been educated in regular
classrooms at her neighborhood public
school for seven years. She is currently
in the seventh grade at Lake Bluff Middle
School with other thirteen-year-old
children. Students in the seventh grade
attend six 42-minute classes a day. They
have three-minute passing periods between
class. Beth’s aides help her travel from
room to room during the passing periods,
although it is extremely difficult for
her to do so in such a short time frame.
Since the first grade, Beth has worked
with a one-on-one aide at all times and
has used an individualized curriculum
tied in subject matter, as much as
possible, to that of the other students
in the class. Beth’s current curriculum
is geared toward someone at a preschool
level. When her peers worked on
mathematics, she was exposed to various
numbers. When the class studied
meteorology and weather patterns, she
looked at pictures of clouds. Beth cannot
participate in class discussions or
lectures.

  The school district held an annual
conference with Beth’s parents, teachers,
and district administrators to review
Beth’s individualized education program
("IEP"). After her second grade year, the
school district recommended at her IEP
meeting that Beth be placed in an ELS
setting. No appropriate special education
environment exists in the Lake Bluff
District; Beth would have to attend
school in a neighboring school
district/1. The ELS program recommended
by the district would be located in a
public school building and would serve
students between the ages of six and
twenty one with mild, moderate, or severe
handicaps. Generally, six to eight
students comprise one ELS classroom, and
the student-teacher ratio is one-to-one.
ELS students in the program are
mainstreamed into regular education
classrooms during music, library, art,
computer, and certain social studies and
science classes, and join other students
at the school during lunch, recess,
assemblies, and field trips.
Additionally, reverse mainstreaming is
employed; that is, regular education
students come into the ELS classroom to
allow for interaction between ELS and
non-ELS students.
  Beth’s parents disagreed with Beth’s
placement in an ELS program, requested a
due process review under the IDEA, and
invoked the Act’s stay-put provision,
which has allowed Beth to remain in the
regular classroom at her neighborhood
school pending the resolution of this
litigation. 20 U.S.C. sec.1415(j).

II.   Discussion

  Beth’s parents argue that the school
district’s placement of Beth in an ELS
classroom violates the IDEA./2 The
district court erred, they contend, in
upholding the administrative decision
finding otherwise. Although we review the
school board’s ultimate decision de novo
because it is a mixed question of law and
fact, we will reverse only if the
district court’s findings were clearly
erroneous, absent a mistake of law.
LaGrange, 184 F.3d at 915.

A. Deference to the Findings of the
Administrative Hearing Officer

  We find as an initial matter that the
district court gave proper weight to the
findings of the hearing officer at the
administrative proceedings. Because
school authorities are better suited than
are federal judges to determine
educational policy, the district court is
required, in its independent evaluation
of the evidence, to give due deference to
the results of the administrative
proceedings. Id. (citing Heather S. v.
Wisconsin, 125 F.3d 1045 (7th Cir.
1997)). The hearing officer correctly
applied the burden of proof and found
that the district satisfactorily showed
that its proposed IEP was adequate under
the IDEA. The district was not required
to prove that Beth received no
educational benefit at her local school,
as her parents suggest. We also find that
the hearing officer did not err as a
matter of law in failing to consider
whether the ELS placement was the least
restrictive environment;/3 he did
consider whether it was the least
restrictive appropriate environment, that
is, whether Beth would be mainstreamed to
the maximum extent appropriate--the
proper question under the LRE analysis
discussed below. The district court,
therefore, did not err in giving
deference to the administrative decision
after independently evaluating the
evidence and even, in this case, updating
it with an evidentiary hearing.

B. The IDEA

  The IDEA, enacted in 1975 as The
Education of All Handicapped Children’s
Act, entitles all children with
disabilities to access to public
education. Pub. L. No. 94-142, 89 Stat.
773 (1975). It conditions federal funding
for educating disabled children on a
state’s compliance with certain
conditions. A school district must
provide such children with a free
appropriate public education ("FAPE"), 20
U.S.C. sec.1412(1), together, to the
maximum extent appropriate, with
nondisabled children ("least restrictive
environment" or "LRE"). 20 U.S.C.
sec.1412(5). The FAPE provision and LRE
provision are two sides of the same IEP
coin. The first requirement is absolute
and focuses on the school district’s
proposed placement--here, the ELS
program; the second is relative and
concentrates on other placement options--
here, keeping Beth in the regular
classroom. The LRE requirement shows
Congress’s strong preference in favor of
mainstreaming, LaGrange, 184 F.3d at 915,
but does not require, or even suggest,
doing so when the regular classroom
setting provides an unsatisfactory
education. 34 C.F.R. sec.300.550(b)(2)
("[S]pecial classes, separate schooling
or other removal of children with
disabilities from the regular educational
environment occurs only if the nature or
severity of the disability is such that
education in regular classes with the use
of supplementary aids and services cannot
be achieved satisfactorily.").

1.   FAPE

  We agree with the district court and the
hearing officer, and find that the
district’s recommendation to place Beth
in an ELS classroom satisfies the FAPE
requirement. In determining whether the
district’s placement of Beth meets the
standard, we must ask: "First, has the
State complied with the procedures set
forth in the Act? And second, is the
individualized educational program
developed through the Act’s procedures
reasonably calculated to enable the child
to receive educational benefits?" Bd. of
Educ. v. Rowley, 458 U.S. 176, 206-07
(1982). No one contests that the program
recommended during Beth’s IEP review
passes muster under this test; the FAPE
mandate is, therefore, not at issue. Its
discussion is required, however, because
of the confusion that ensues when
language from the FAPE requirement and
analysis is misapplied to the LRE
inquiry.

  Beth’s parents confuse the FAPE side of
the coin with the LRE side. They contend
that Beth’s current placement satisfies
the Rowley standard because she received
an educational benefit at Lake Bluff
Middle School. So long as the regular
classroom confers "some educational
benefit" to Beth, they argue, 458 U.S. at
200, the school district cannot remove
her from that setting. This language is
misplaced. The Rowley holding applies
only to the school district’s
responsibility to provide a FAPE--a
requirement that analyzes the
appropriateness of the district’s
placement--not the appropriateness of the
ELS alternatives, including the regular
education classroom. As the district
court properly noted, the FAPE
determination is at the threshold of the
placement inquiry. Only with the
subsequent LRE analysis does the question
of the educational benefit to Beth in the
regular classroom arise; in that context,
the Rowley language does not apply. See
also Daniel R.R. v. Bd. of Educ., 874
F.2d 1036, 1045 (5th Cir. 1989); A.W. v.
Northwest R-1 School Dist., 813 F.2d 158,
163 (8th Cir. 1987); Roncker v. Walter,
700 F.2d 1058, 1063 (6th Cir. 1983).

2.  LRE
  The core of this dispute involves
whether the school district’s decision to
place Beth in an ELS classroom violates
the LRE provision of the IDEA. Under this
clause, the district must mainstream
Beth--that is, provide her an education
with her nondisabled peers--to the
"greatest extent appropriate." 20 U.S.C.
sec.1412(5). Again, Congress used the
modifier "appropriate" in stating the
requirements of the Act, limiting its
mainstreaming mandate. The regular class
room would be a less restrictive
environment than the ELS classroom. That
point is not at issue, however, because
the Lake Bluff school district is not
required to educate Beth in such an
environment unless doing so would be
appropriate. The Supreme Court, although
it has not yet interpreted the language
of the LRE provision, has stated that
"[t]he Act’s use of the word
’appropriate’ thus seems to reflect
Congress’ recognition that some settings
simply are not suitable environments for
the participation of some handicapped
children." Rowley, 458 U.S. at 197 n. 21.
This case turns, then, on whether
educating Beth in the regular classroom
(or, more appropriately in the middle
school setting, classrooms) would be
appropriate.

  The relevant IDEA regulation provides
that children may not be removed from the
regular classroom unless their education
there, with the use of supplementary aids
and services, cannot be achieved
satisfactorily. 34 C.F.R.
sec.300.550(b)(2). This preference for
mainstreaming demands a hard look and a
careful analysis of the education Beth
was receiving at Lake Bluff Middle
School. Beth’s parents rely on misplaced
language from Rowley to argue that so
long as she was receiving any benefit--
improvement in eye contact, or progress
in responding to a request to "look" or
"touch"--her removal would violate the
LRE requirement. We cannot agree with
this definition of satisfactory
education.

  Rowley requires, in its analysis of the
FAPE provision, "that the education to
which access is provided be sufficient to
confer some educational benefit upon the
handicapped child." 458 U.S. at 200. The
Court’s rationale behind using this
standard was "to leave the selection of
educational policy and methods where they
traditionally have resided--with state
and local school officials." Daniel R.R.,
874 F.2d at 1044 (citing Rowley, 458 U.S.
at 207). The standard is intended to give
school districts "flexibility in
educational planning." Id. By applying it
to the LRE directive and arguing that the
school district cannot remove Beth from
the regular classroom if she receives any
benefit there, Beth’s parents turn the
"some educational benefit" language on
its head. Instead of granting flexibility
to educators and school officials, it
places an extreme restriction on their
policymaking authority and the deference
they are owed; it essentially vitiates
school districts’ authority to place any
disabled children in separate special
education environments. Neither Congress
nor the Supreme Court intended such a
result. Rowley, 458 U.S. at 181, fn. 4
("Congress recognized that regular
classrooms simply would not be a suitable
setting for the education of many
handicapped children.").

  Each student’s educational situation is
unique. We find it unnecessary at this
point in time to adopt a formal test for
district courts uniformly to apply when
deciding LRE cases. The Act itself
provides enough of a framework for our
discussion; if Beth’s education at Lake
Bluff Middle School was satisfactory, the
school district would be in violation of
the Act by removing her. If not, if its
recommended placement will mainstream her
to the maximum appropriate extent, no
violation occurs. In this case we can say
with confidence that the Lake Bluff
school district’s decision to remove Beth
from her regular school did not violate
the IDEA’s mandate to mainstream disabled
children to the maximum extent
appropriate. Beth was in class for about
fifty percent of each day. Her academic
progress was virtually nonexistent and
her developmental progress was limited.
Although the school district provided her
with aides, communication devices,
computerized books, and an individual
curriculum, she was receiving very little
benefit from her time there.

  We agree with the school district’s
decision that a modicum of developmental
achievement does not constitute a
satisfactory education. The ELS
classroom, so long as it includes reverse
mainstreaming opportunities, as well as
time spent with nondisabled peers in
nonacademic classes, during special
projects, lunch, and the like, is at an
acceptable point along the "continuum of
services" between total integration and
complete segregation, and satisfies the
requirement that Beth be mainstreamed to
the maximum extent appropriate. 34 C.F.R.
sec.300.551; 20 U.S.C. sec.1412(5). The
school officials’ decision about how to
best educate Beth is based on expertise
that we cannot match. They relied on
years of evidence that Beth was not
receiving a satisfactory education in the
regular classroom. The placement shows a
concern both for her development and for
keeping her mainstreamed, to an
appropriate extent, with her nondisabled
peers. We cannot hold that the Lake Bluff
School District has failed to provide her
with the free, appropriate public
education where she is mainstreamed to
the maximum extent appropriate, to which
she is entitled under the IDEA. Although
we respect the input Beth’s parents have
given regarding her placement and the
their continued participation in IEP
decisionmaking, educators "have the power
to provide handicapped children with an
education they consider more appropriate
than that proposed by the parents."
Lachman v. Illinois State Bd. of Educ.,
852 F.2d 290, 297 (7th Cir. 1988). We
find that the district’s proposed IEP,
which includes reverse mainstreaming and
provides that Beth will take part in
certain regular-education classes, does
not violate the statutory LRE mandate.

III.   Conclusion

  For the reasons stated herein, we find
that the school district’s recommendation
to place Beth in an ELS classroom does
not violate the IDEA. We AFFIRM the
decision of the district court.

FOOTNOTES

/1 It is not yet determined at which school Beth’s
classroom will be. The district has recommended
that she be placed in an ELS class at a public
junior high school, several of which are under an
hour from Beth’s home.

/2 Although the motion granted by the district court
was properly labeled one for summary judgment,
this type of IDEA decision does not fit neatly
into the generic definition of such a disposi-
tion. Due to the unique procedural posture of
these cases, however, summary judgment has been
deemed appropriate even when facts are in dis-
pute, and is based on a preponderance of the
evidence. Bd. of Educ. of LaGrange School Dist.
No. 105 v. Illinois State Bd. of Educ., 184 F.3d
912, 914-15 (1999) (hereinafter LaGrange); A.P.
v. McGrew, 1998 WL 808879 (N.D. Ill. Nov. 16,
1998). As the district court below noted, its
decision is perhaps better described as judgment
on the record.

/3 In fact, it is undisputed that keeping Beth
mainstreamed in the regular classroom would be
less restrictive than placing her in the ELS
program.
