In the
United States Court of Appeals
For the Seventh Circuit

No. 98-2276

Linda W., et al.,

Plaintiffs-Appellants,
v.

Indiana Department of Education, et al.,

Defendants-Appellees.



Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:94-CV-268RM--Robert L. Miller, Jr., Judge.


Argued October 27, 1999--Decided December 22, 1999



  Before Bauer, Coffey, and Easterbrook, Circuit Judges.

  Easterbrook, Circuit Judge. Ryan Van Damme, who
is dyslexic, received an individually tailored
educational program at the public schools of
Mishawaka, Indiana. Near the end of Ryan’s
seventh-grade year (in spring 1993), his parents
objected to the school district’s plan for the
next year. During summer 1993 Ryan attended
Landmark School in Massachusetts, and toward the
end of that summer his parents requested a
hearing on the adequacy of the district’s plan.
A hearing officer concluded that the district
must provide Ryan with help from specialists
(three 45-minute sessions per week with remedial
reading instructors, two per week on
"accommodation strategies") and afford
compensatory education during the summers of 1994
and 1995 to make up for its late start in
supplying this assistance. The hearing officer
concluded, however, that Ryan was not entitled to
summer education as a norm and should receive
most of his instruction via "mainstreaming" in
the public schools. Shortly after receiving this
decision, Ryan’s parents removed him from the
Mishawaka schools and sent him to Landmark School
full time. They initiated this litigation seeking
to compel Mishawaka to pay for Ryan’s education
at Landmark.

  After concluding that Mishawaka is responsible
for Ryan’s education, see 927 F. Supp. 303 (N.D.
Ind. 1996), the district court concluded that the
final decision of the administrative process was
reasonable and should be enforced in the main.
Local and state educational bodies provided Ryan
with multiple hearings under the Individuals with
Disabilities Education Act, 20 U.S.C. sec.sec.
1400-87, but it is not necessary to recount all
the details. What matters now is that at the end
of the administrative process, state officials
concluded that education in the public schools,
plus five special sessions per week, plus
supplemental education during the summers of 1994
and 1995, would provide Ryan with a free
appropriate public education. With this
conclusion the district court agreed in a
thoughtful opinion. The district court accorded
suitable deference to the hearing officers’
conclusions. Given the deference we owe to the
district judge’s assessment of the person-
specific factors that these situations entail,
the decision cannot be upset on appeal. Morton
Community Unit School District No. 709 v. J.M.,
152 F.3d 583, 587-88 (7th Cir. 1998), explains
why appellate review is deferential in a case of
this nature even though the district court
granted summary judgment; no more need be said
about the standard of review or the merits of the
hearing officers’ educational plan for Ryan.

  Nonetheless, Ryan’s parents contend, they are
entitled to reimbursement for the placement at
Landmark because at the time they transferred
Ryan from public to private school, Mishawaka was
not providing him with an adequate education.
Under the stay-put provision of the Act, 20
U.S.C. sec.1415(e)(3) (1992 ed.), the parents’
objection to the proposed 1993 plan locked in
place the 1992 plan--a plan that, the hearing
officers determined, had flaws similar to those
of the 1993 plan. (Amendments made to the Act in
1997 alter the stay-put rules, see sec.1415(j),
(k)(7); we need not explore the differences.)
When Ryan was transferred to Landmark in January
1994, the school district was still using the
1992 plan, because both sides had filed
administrative appeals from the initial hearing
officer’s decision. Ryan’s parents invoke
Burlington School Committee v. Massachusetts
Department of Education, 471 U.S. 359, 369-71
(1985), for the proposition that parents who
remove their child from a deficient educational
environment are entitled to compensation for the
replacement education. Parents who act on a
belief that the public education is inadequate
take a risk, for, if the school’s program is
upheld in the end, the parents are out of pocket;
but Ryan’s parents contend that the vindication
of their view means that they must be reimbursed.
Like the district court, we think that this
overreads Burlington.
  What the Court held in Burlington is that a
district judge has the discretion "to order
school authorities to reimburse parents for their
expenditures on private special education for a
child if the court ultimately determines that
such placement, rather than a proposed IEP
[individualized education program], is proper
under the Act." 471 U.S. at 369. Parents thus
must establish more than that the school
district’s original plan is deficient. If that
were enough, then the costs to school districts
of administering the Act would skyrocket, for
educational professionals frequently disagree
among themselves how best to cope with a pupil’s
learning problems. One set of educators proposed
a plan for Ryan; the first hearing officer
modified the plan; the state’s Board of Special
Education Appeals modified the hearing officer’s
modifications. All three participants--the school
district, the hearing officer, and the Board--
believed that Mishawaka’s public schools could
provide Ryan with an appropriate education once
suitable adjustments had been made to the
program. This is a frequent sequence, and if it
were enough by itself to justify moving the child
to a private school (with compulsory
reimbursement), then there would be an exodus
from the public schools. That is not what
Burlington contemplates. Parents not only must
show that placement in a private school is
"proper under the Act" but also must persuade a
district court to exercise its discretion to
provide reimbursement. The Court emphasized that
discretion, which means that reimbursement is not
a matter of entitlement. "The statute directs the
court to ’grant such relief as [it] determines is
appropriate’ [when the school district’s plan is
inadequate]. The ordinary meaning of these words
confers broad discretion on the court." 471 U.S.
at 369 (quoting from 20 U.S.C. sec.1415(e)(2),
which has since been moved to
sec.1415(i)(2)(B)(iii)).
  In this case the district court concluded that
reimbursement for private education is not
"appropriate", because the hearing officers and
the judge believed that with extra sessions five
times a week, education in the Mishawaka schools
would satisfy the Act’s requirements--would
indeed be preferable to education at Landmark
School, for the Act prefers a "mainstreaming"
approach while Landmark’s program separates its
pupils from their non-disabled peers. The hearing
officers recognized that the Mishawaka schools
had fallen behind in providing extra services to
Ryan and that compensatory enrichment was called
for; but the hearing officers and the district
court also concluded that Ryan did not need
placement in Landmark either for summer sessions
or for a full program. Given the discretion to
which the Supreme Court referred, this reasoned
(and reasonable) conclusion cannot be upset now.

  One final issue remains: attorneys’ fees. Ryan’s
parents contend that they have "prevailed" in
this case and therefore are entitled to an award
of fees despite the district court’s
unwillingness to upset the hearing officers’
principal decisions. Plaintiffs recovered about
$1,000 as compensation for private tutoring for
Ryan in January and February 1994. On all other
issues they lost, and $1,000 is paltry compared
with the relief they were seeking. That implies,
as the district court held, that plaintiffs did
not prevail in the litigation. See Fletcher v.
Ft. Wayne, 162 F.3d 975 (7th Cir. 1998); Hunger
v. Leininger, 15 F.3d 664, 670 (7th Cir. 1994).
Plaintiffs reply that they won a procedural
victory (the district court’s decision that
Mishawaka is responsible for Ryan’s education)
and that the hearing officers found the
district’s plan wanting. True enough, but to
prevail in litigation one must win on the merits,
and not just score tactical victories in
interlocutory skirmishes. Hanrahan v. Hampton,
446 U.S. 754 (1980). Plaintiffs did not need to
file suit to enjoy the value of their success in
the administrative process. Even the decisions of
the hearing officers did Ryan no good in the end,
because his parents removed him from the public
schools before those decisions took effect. The
district court did not abuse its discretion in
holding that defendants are the prevailing
parties in this litigation.

Affirmed
