           William J. DEVINE, Terry Devine, et al., Plaintiffs-Counter-Defendants-Appellants,

                                                     v.
        INDIAN RIVER COUNTY SCHOOL BOARD, Defendant-Counter-Claimant-Appellee.

                                               No. 99-13058.

                                      United States Court of Appeals,
                                             Eleventh Circuit.

                                               May 2, 2001.

Appeal from the United States District Court for the Southern District of Florida.(No. 93-14202-CIV-NCR),
Norman C. Roettger, Jr., Judge.

Before EDMONDSON, BLACK and McKAY*, Circuit Judges.

        EDMONDSON, Circuit Judge:

        This case is a challenge to an Individual Education Plan ("IEP") created pursuant to the Individuals
with Disabilities Educational Act, 20 U.S.C. § 1400 et seq. ("IDEA"). We affirm the district court's decision

upholding the IEP as being reasonably calculated to confer an appropriate education.
        Plaintiffs William Devine, Terry Devine and John Devine filed this action against Defendant Indian
River County School Board under the IDEA seeking a Free Appropriate Personal Education ("FAPE").

        John Devine is a child seriously impaired in all areas of functioning and has been classified as
autistic. John and his family moved to the Indian River County School District in the fall of 1988. John
enrolled in the Indian River School System and, after an assessment of his needs, was placed in a day program

at the Wabasso School for Exceptional Children.
        For the 1989/1990 school year, John attended Dodgertown Elementary School, where an autistic
program was created by the school board. John remained at Dodgertown for the 1990/1991 and 1991/1992

school years. IEPs were developed and implemented for John by the school and with contribution from

John's parents.

        For the 1992/1993 school year, the school board and the parents could reach no agreement on an
appropriate IEP. Mr. Devine insisted on residential placement, preferably at the May Institute. The school
board did not believe residential placement was necessary for John to receive an appropriate education. The

board, however, did offer the Devine family counseling and in-home behavioral counseling as it had done



    *
     Honorable Monroe G. McKay, U.S. Circuit Judge for the Tenth Circuit, sitting by designation.
in the previous years. Mr. Devine rejected the school board's offer and requested a due process hearing.

        While the hearing officer ruled that the 1992/1993 IEP was not appropriate and did fail to provide
John with an FAPE, the officer disagreed that John was entitled to residential placement.

        Plaintiffs then filed, in the district court, a complaint seeking compensatory educational expenses (in

the form of extended years of eligibility for services under the IDEA), attorney fees as the prevailing party

in the due process proceeding, declaratory judgment approving residential placement of John at the May
Institute and also reimbursement for the costs of John's placement at the May Institute.

        The district court, after five days of live expert testimony and after reviewing the administrative
record1, concluded that the 1992/1993 IEP provided John with an appropriate education and, accordingly,

residential placement was not required. We affirm the district court's decision.
                                                 DISCUSSION

         First, we must decide who bears the burden of proving that an existing IEP is inappropriate in an
IDEA challenge. Plaintiffs urge us to adopt the standard set forth by the New Jersey Supreme Court in

Lascari v. Board of Educ. of Ramapo, 116 N.J. 30, 560 A.2d 1180 (1989). In Lascari, the New Jersey court

concluded that the burden should be placed "on the school district not only when it seeks to change the IEP,

but also when the parents seek the change." Id., 560 A.2d at 1188. The court reasoned that school districts

are uniquely situated in assessing the adequacy of an IEP because they possess a resource of experts who are

quickly able to evaluate and determine the appropriate placement for a child. See id.

        In contrast, Defendants ask us to adopt the standard employed by the Fifth Circuit, which determined
that the party attacking the IEP should bear the burden of showing why the IEP is not appropriate. The Fifth

Circuit wrote:
        We have previously held—as have the majority of federal courts that have considered the issue—that
        [IDEA] "creates a presumption in favor of the education placement established by [a child's] IEP, and
        the party attacking its term should bear the burden of showing why the educational setting established
        by the IEP is not appropriate."

Christopher M. v. Corpus Christi Indep. Sch. Dist., 933 F.2d 1285, 1290-91 (5th Cir.1991)(internal citation



    1
     Plaintiffs argue that the district court refused to consider the administrative record and to give due
weight to the findings and conclusions of the hearing officer. It, however, was within the district court's
discretion to prefer live testimony over that of depositions and, in the event live testimony was not
possible, to require the depositions to be read into the record. Plaintiffs' assertion that the district court
ignored the administrative record is belied by the court's final order, which extensively referred to the
administrative record and specifically cited testimony given by Dr. Amy Weatherby, who did not testify
before the district court.
omitted).
        In addition to the Fifth Circuit, other federal courts have supported the view that the party attacking

the IEP bears the burden of showing that the IEP is inappropriate. See McKenzie v. Smith, 771 F.2d 1527,

1531 (D.C.Cir.1985); Tatro v. State of Texas, 703 F.2d 823, 830 (5th Cir.1983), rev'd in part on other

grounds, 468 U.S. 883, 104 S.Ct. 3371, 82 L.Ed.2d 664 (1984); Burger v. Murray County Sch. Dist., 612

F.Supp. 434, 437 (N.D.Ga.1984); Bales v. Clarke, 523 F.Supp. 1366, 1370 (E.D.Va.1981). This placement

of the burden is premised on the idea that, when a child is currently learning in a program that was jointly

developed by the school district and the parents, the party attacking the program should show why it is

inappropriate. See Burger, 612 F.Supp. at 437; see also Lascari, 560 A.2d at 1187.

        We believe the Fifth Circuit holds the better view, especially in the light of our circuit's previous

recognition that great deference must be paid to the educators who develop the IEP. See JSK v. Hendry

County Sch. Bd., 941 F.2d 1563, 1573 (11th Cir.1991). In the present case, because it is the parents who are

seeking to attack a program they once deemed appropriate, the burden rests on the parents in this IEP

challenge.

         The remaining issue in this case is whether the 1992/1993 IEP was reasonably calculated to confer
the basic floor of educational benefits.2 Plaintiffs main argument is that John cannot generalize learned skills
across environments. Plaintiffs specifically assert that John has demonstrated serious behavioral problems

at home and that Defendants make no mention of an effort to address John's educational needs in the home
environment.
        The Supreme Court has said that a student is only entitled to some educational benefit; the benefit

need not be maximized to be adequate. See Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley,



    2
      Plaintiffs request damages and compensatory services for the years 1988 to 1993. Plaintiffs point to
no record evidence which shows that Plaintiff ever requested a due process hearing on an IEP except that
of 1992/1993. And Plaintiffs must exhaust their administrative remedies by proceeding through a due
process hearing to adjudicate the appropriateness of the IEPs before they can challenge those IEPs in
court. See Babicz v. Sch. Bd. of Broward County, 135 F.3d 1420, 1422 (11th Cir.1998)(litigants must
first exhaust administrative remedies under section 1415(f) of the IDEA before presenting federal claims
regarding the denial of publicly financed special education).

                On Plaintiffs' claims for 1993 to the present, Plaintiffs are entitled to no relief. The IDEA
        provides that "[a] free appropriate public education is available to all children with disabilities
        residing in the State." 20 U.S.C. § 1412(a)(1)(A)(emphasis added). Because Plaintiffs are no
        longer residing in the state of Florida and have, since 1993, been receiving residential placement
        from the state of Massachusetts at no cost to Plaintiffs, Plaintiffs have no standing to assert a
        claim under the IDEA after the 1992/1993 school year.
458 U.S. 176, 102 S.Ct. 3034, 3046, 3049 n. 26, 73 L.Ed.2d 690 (1982). One of John's teachers, Ms. Brewer,

testified that during the 1992/1993 school year, John made progress in 26 out of 27 education goals. The
testimony of John's teachers also reflected that John was in large part uncontrollable when he first arrived at

Dodgertown but that, over the school year, he reached a level where he acquired skills, which he could

display across settings. John was also able to establish relationships with his peers and formed an especially

close bond to one of his teachers, Ms. Thomas.
        In contrast, the two experts on which Plaintiffs rely testified that John received no educational benefit

during the 1992/1993 school year. Both witnesses based their determination on limited observations of John
and on the word of John's parents. The district court noted that neither witness consulted John's teachers nor

requested documentation underlying the IEP. The district court also directly questioned the credibility of one

of these experts and deemed his testimony to be suspect.
        This same expert (who is affiliated with the May Institute), when evaluating whether John had
received an appropriate education, defined an appropriate education as something "more than just making

measurable and adequate gains in the classroom." But this circuit has specifically held that generalization
across settings is not required to show an educational benefit. "If 'meaningful gains' across settings means

more than making measurable and adequate gains in the classroom, they are not required by [IDEA] or

Rowley." JSK, 941 F.2d at 1573.

        Plaintiffs also argue that the IEP was inadequate because it failed to provide respite care for the
Devine family: that is, to provide for people—other than the family—to care for John at home. Dr. Russo,

testifying for Plaintiffs, opined that respite care was "absolutely important" because the "parents often have
other responsibilities. That is, their sole job cannot be to be the educator or teacher of a child who needs such

education. They have other children. They have other responsibilities including jobs." While respite care

will no doubt benefit the Devine family, Defendants fail to show how respite care will benefit John's

education. In addition, Defendants provided testimony that the school did offer at-home services in the
1992/1993 IEP, which Plaintiffs rejected.

        For these reasons, we conclude that Plaintiffs have failed to show that the 1992/1993 was not

reasonably calculated to confer the basic floor of educational benefits.
        AFFIRMED.
