 United States Court of Appeals
                For the Seventh Circuit
                Chicago, Illinois 60604

                    November 14, 2007

                          Before

     Hon. FRANK H. EASTERBROOK, Chief Judge
     Hon. WILLIAM J. BAUER, Circuit Judge
     Hon. RICHARD A. POSNER, Circuit Judge
     Hon. JOEL M. FLAUM, Circuit Judge
     Hon. KENNETH F. RIPPLE, Circuit Judge
     Hon. DANIEL A. MANION, Circuit Judge
     Hon. MICHAEL S. KANNE, Circuit Judge
     Hon. ILANA DIAMOND ROVNER, Circuit Judge
     Hon. DIANE P. WOOD, Circuit Judge
     Hon. TERENCE T. EVANS, Circuit Judge
     Hon. ANN CLAIRE WILLIAMS, Circuit Judge
     Hon. DIANE S. SYKES, Circuit Judge

No. 06-3044
JOEL HJORTNESS, A MINOR, BY AND THROUGH HIS
PARENTS AND LEGAL GUARDIANS  ERIC HJORTNESS
AND GAIL HJORTNESS, ERIC HJORTNESS, AND
GAIL HJORTNESS,
                                  Plaintiffs-Appellants,
                          v.


NEENAH JOINT SCHOOL DISTRICT,
                                         Defendant-Appellee.
                        ____________
           Appeal from the United States District Court
               for the Eastern District of Wisconsin.
     Nos. 05 C 648, 05 C 656—William C. Griesbach, Judge.
                       ____________
2                                               No. 06-3044

                         ORDER
  On September 4, 2007, plaintiffs-appellants filed a
petition for rehearing en banc, and on October 1, 2007,
defendant-appellee filed an answer to the petition. A
majority of the judges on the panel voted to deny rehear-
ing. A vote on whether to grant rehearing en banc was
requested and a majority of the judges in regular active
service have voted to deny the petition. Judges Ripple,
Rovner, Wood, and Williams’ joint opinion dissenting
from the denial of rehearing en banc is appended.
    The petition is therefore DENIED.




  RIPPLE, Circuit Judge, with whom ROVNER, WOOD and
WILLIAMS, Circuit Judges, join, dissenting from the
denial of rehearing en banc. Joel Hjortness, a student
with significant learning and behavioral disabilities,
attended public school in the Neenah School District. His
parents believed that the school was not addressing ade-
quately his learning and behavioral needs, and, in May
2003, they placed him in a residential private school. In
November 2003, the school district began its process of
reevaluating Joel for IDEA purposes. After a number of
meetings, some with and some without Joel’s parents, the
school district concluded that he should be placed back in
the public school. His parents requested a due process
hearing to seek reimbursement for the cost of private school.
  The ALJ determined that the school district had com-
plied with the substantive requirements of the IDEA by
providing Joel with an individualized education plan (“IEP”)
reasonably calculated to provide him meaningful educa-
No. 06-3044                                                      3

tional benefits. The ALJ also found, however, that the
school district had committed procedural violations of the
IDEA by failing to develop the IEP with parental input
and by making the decision to place Joel in the public
school prior to the consultative process with his parents.
The ALJ therefore ordered reimbursement. On appeal, the
district court granted summary judgment in favor of the
school district.1 The Hjortnesses appealed.
  A panel of this court affirmed, holding that predeter-
mination was appropriate under the IDEA. Without citing
any authority, the panel majority further created a manda-
tory presumption in favor of public school placement
under the IDEA. The dissenting member of the panel
concluded that the IDEA’s presumption in favor of educat-
ing students with their non-disabled peers “does not per-
mit a school district to circumvent the procedures that
Congress has mandated by predetermining that a disabled
student should be placed in one of its own schools.” In her
view, the IDEA requires placement decisions to be made
based on the IEP, and allowing a school to make a place-
ment decision before the IEP is developed would render
the procedural process outlined in the IDEA meaningless.



1
   The district court appears to have disagreed with the ALJ’s
finding that Joel’s placement had been predetermined, but its
disagreement was based on its legal interpretation that pre-
determination is appropriate under the IDEA. Hjortness ex rel.
Hjortness v. Neenah Joint Sch. Dist., 2006 WL 1788983 at *6
(E.D. Wis. June 27, 2006) (referring to 20 U.S.C. § 1412(a)(5)(A),
the IDEA’s mainstreaming provision, and concluding that “the
District had no obligation to consider placing Joel at [the private
school] unless and until it concluded that he could not receive a
free and appropriate public education in district schools”). The
panel majority appears to have assumed the ALJ’s finding
that predetermination had occurred; it merely repeated the
district court’s conclusion that predetermination was appro-
priate.
4                                                  No. 06-3044

  While the panel majority has amended its opinion to
verbalize support for Board of Education of Township High
School District No. 211 v. Ross, 486 F.3d 267, 274 (7th Cir.
2007), the text of the revised opinion notably leaves
intact its approval of predetermination.2 It takes this
stance despite the fact that, only five months ago in Ross,
this court recognized that, when school authorities deter-
mine the placement of a child in advance of the statutorily
mandated consultative process with the child’s parents,
they violate the procedural obligations of the IDEA. The
resulting IEP cannot be implemented because it is not
the result of the process mandated by Congress, and
therefore does not result in a free and appropriate educa-
tion. In Ross, we noted that the IEP was the “central tool”
for determining placement and that a school district
could not hold “sham” IEP meetings for the purpose of
merely ratifying a predetermined placement decision. Id.
(quoting Deal v. Hamilton County Bd. of Educ., 392 F.3d
840, 857 (6th Cir. 2004); Spielberg v. Henrico County Pub.
Sch., 853 F.2d 256 (4th Cir. 1988)). In the present case,
by contrast, the panel majority concluded that predeter-
mination was permissible so long as it resulted in a sub-
stantively appropriate public placement.



2
  The panel majority opinion addressed what it recognized to
be “the appellants’ main challenge”—that the school district
inappropriately predetermined Joel’s placement. It concluded:
“The ALJ found that the school district made its decision to
place Joel in public school before the IEP was written. However,
the IDEA requires that the school district educate Joel with
his nondisabled peers to the ‘greatest extent appropriate.’ 20
U.S.C. § 1412(a)(5)(A). Recognizing that we owe great deference
to the ALJ’s factual findings, we find that the IDEA actually
required that the school district assume public placement
for Joel. Thus, the school district did not need to consider pri-
vate placement once it determined that public placement was
appropriate.”
No. 06-3044                                                  5

  The panel majority’s decision is also contrary to the
majority of decisions on the issue in the courts of appeal.
The seminal case is the Fourth Circuit’s decision in
Spielberg, 853 F.2d 256, a case quite similar to this one. In
Spielberg, a severely handicapped child was attending
a private residential school. The public school district
began an evaluation of his needs to develop an IEP, which
“from the beginning” focused on placement at the public
school district’s special education facility. Id. at 257. After
a series of letters and meetings with the parents, an IEP
was drawn up, and the child was placed at the public school.
Id. The Spielbergs appealed. The local hearing officer
determined that the new IEP was substantively appropri-
ate, but the district court found that the school district
had violated the procedural requirements of the Education
of All Handicapped Children Act (the precursor to the
IDEA) by determining placement prior to developing an
IEP. Id. at 257-58. The Fourth Circuit affirmed the district
court’s decision that the IEP must be developed prior to
placement, holding:
      The defendants violated EHA procedures when they
    resolved to educate Jonathan Spielberg at [the public
    facility], and then developed an IEP to carry out their
    decision. This failure to follow EHA procedures is
    sufficient to hold that the defendants failed to provide
    Jonathan with a FAPE [free appropriate public edu-
    cation].
Id. at 259.
  The Sixth Circuit, relying on Spielberg, has agreed that
predetermination is inappropriate under the IDEA, and
that it can result in a denial of a free and appropriate
education. Deal v. Hamilton County Bd. of Educ., 392 F.3d
840 (6th Cir. 2004) (“Because it effectively deprived
Zachary’s parents of meaningful participation in the IEP
process, the predetermination caused substantive harm
and therefore deprived Zachary of FAPE.”); see also Nack
6                                               No. 06-3044

v. Orange City Sch. Dist., 454 F.3d 604, 610 (6th Cir. 2006).
The Ninth Circuit also has found that predetermination
of placement prior to formation of an IEP is impermissible
under the IDEA. W.G. v. Bd. of Trustees of Target Range
Sch. Dist. No. 23, 960 F.2d 1479 (9th Cir. 1992). Indeed,
until the panel’s decision, only the First Circuit had held
(cursorily) that predetermination does not necessarily
result in a denial of FAPE. See Hampton Sch. Dist. v.
Dobrowolski, 976 F.2d 48 (1st Cir. 1992).
  In this case, the ALJ made a finding that the Neenah
School District had predetermined Joel Hjortness’ public
school placement before the formulation of the IEP in the
consultative process. Therefore, it concluded, the place-
ment decision was made without meaningful participation
by the parents. This procedural violation denied Joel a free
and appropriate public education. The panel majority
opinion, contrary to the positions of the majority of other
circuits, summarily concluded that this predetermination
was appropriate under the IDEA.
  The process sanctioned by the panel majority is also
contrary to the regulations of the agency charged with the
administration of the statute. The district court quoted
34 C.F.R. 300.552(c), in effect at the time of this incident,
which stated that “[u]nless the IEP of a child with a dis-
ability requires some other arrangement, the child is
educated in the school that he or she would attend if
nondisabled.” 2006 WL 1788983 at *6. Subpart (c), however,
should not be read without its preceding subpart, which
notes: “The child’s placement . . . [i]s based on the child’s
IEP.” 34 C.F.R. 300.552(b)(2). A child’s placement deter-
mination must be made after the required consultation
with the child’s parents and development of an IEP.
  Similarly, the mainstreaming provision of the IDEA,
20 U.S.C. § 1412(a)(5)(A), on which the panel majority
relies, provides a preference for education of a disabled
student with his non-disabled peers. It is debatable whether
No. 06-3044                                                 7

this provision also presumes public placement over
private placement. Nevertheless, the provision is qualified
with the phrase “to the maximum extent appropriate.”
Whether such placement is appropriate can only be deter-
mined after consultation with the child’s parents and the
development of an IEP. The school district may presume
placement in a public school, but it may not predetermine
placement there.
  Allowing school districts to predetermine placement
prior to the consultative process would have drastic conse-
quences for the administration of the IDEA, for the gover-
nance of our educational system and for the rights of
parents to have a meaningful say in the education of their
child. As the dissent to the panel majority notes, school
districts now have an incentive to start with a desired
result and work backwards to develop an IEP with only
the minimal goals that are achievable by the pre-selected
placement. As the dissent correctly notes, the IDEA’s
presumption in favor of educating students with their non-
disabled peers “does not permit a school district to cir-
cumvent the procedures that Congress has mandated by
predetermining that a disabled student should be placed
in one of its own schools.” The IDEA requires place-
ment decisions to be made based on the IEP; allowing a
school district to make a placement decision before the IEP
would render the process mandated by the IDEA meaning-
less and leave the parents with nothing more than a
charade.
  The panel majority’s insistence on the retention of its
approval of predetermination creates, at the very least, a
significant ambiguity in the law of the circuit and, it
appears, a conflict with the established law of this circuit.
It also appears to set the law of this circuit on a trajectory
contrary to the majority of the circuits that have examined
the question, and contrary to the established position of
the agency charged with the administration of the statute.
Members of the bench and bar, whose professional re-
8                                                No. 06-3044

sponsibilities involve the administration of the IDEA, must
deal with an added and unnecessary burden because of
the court’s failure to clear up this situation through a
rehearing by the full court. Unless this situation is cor-
rected swiftly, the result will be a drastic disruption in
the administration of the statutorily mandated consulta-
tive procedure between parents and school officials and a
significant dilution of parental rights to participate in the
education of their child. Accordingly, I respectfully dissent.

A true Copy:
       Teste:

                         ________________________________
                         Clerk of the United States Court of
                           Appeals for the Seventh Circuit




                   USCA-02-C-0072—11-14-07
