The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2867
EVANSTON COMMUNITY CONSOLIDATED
SCHOOL DISTRICT NUMBER 65,
Plaintiff-Appellant,
v.
MICHAEL M. and CHRISTINE M., parents of JOHN M.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 1063—Ronald A. Guzman, Judge.
____________
No. 02-3001
JOHN M., by his parents and next friends,
MICHAEL M. and CHRISTINE M.,
Plaintiffs-Appellants,
v.
EVANSTON COMMUNITY CONSOLIDATED SCHOOL
DISTRICT NUMBER 65 and DR. HARDY RAY MURPHY,
its superintendent, sued in his official capacity,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 1052—Ronald A. Guzman, Judge.
____________
2 Nos. 02-2867 & 02-3001
ARGUED MAY 29, 2003—DECIDED FEBRUARY 2, 2004
____________
Before CUDAHY, EVANS, and WILLIAMS, Circuit Judges.
PER CURIAM. The parents of John M. have brought this
case, claiming that the Evanston Community Consolidated
School District violated John’s rights under the Individuals
with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et
seq. Both sides have appealed portions of the district court
decision.
The facts in this case are many and detailed, but we will
attempt to avoid an endless and tedious recitation. In short,
John has Downs Syndrome. During the 1999-2000 school
year he was in third grade. He was in a regular classroom
but received 400 minutes of special education services,
including 150 minutes per week of speech and language
resources, 30 minutes per week of direct occupational
therapy (OT) services, and 60 minutes per month of physi-
cal therapy (PT) services. He also had a full-time teacher’s
aide.
In the spring of 2000, the District conducted its tri-annual
evaluation of John to be used in the preparation of his
individualized education program (IEP) for the 2000-2001
school year. The parents and the District disagreed about
how to perform the evaluation. The parents refused to allow
standardized assessment tools but eventually agreed on an
evaluation procedure which did not use standardized
testing. Based on evaluations by occupational therapist
Cathy Duba and physical therapist Patricia Anderson, the
District prepared John’s IEP for 2000-2001. It proposed 30
minutes of OT consultation per week and 30-60 minutes of
PT consultation per month. In addition, Special Services
Director Dan Thompson added 30 minutes of direct PT
services.
Nos. 02-2867 & 02-3001 3
The parents were not happy with the proposed IEP and
requested private OT and PT evaluations. The parents
hired a therapist from Pathways, a private organization, to
perform an evaluation in July 2000. Part of this evaluation
involved the use of standardized tests in a “non-stand-
ardized way.” The parents paid $800 for the Pathways
evaluation.
Thompson believed that the District’s evaluations were
appropriate and rejected the request that the District pay
for the private evaluation. Instead, Thompson requested a
due process hearing. Consequently, a hearing was held
before a due process hearing examiner, at which the School
District prevailed on all issues except, in the examiner’s
words, two “technical violations.” One of the violations
involved the occupational therapist Duba. She had received
her MA in OT in August 1999 and passed her licensing
exam in March 2000, but she did not receive her license
until May 2000. Under those circumstances she could
legally work in the school district, but only with more
supervision than she received. According to the hearing
examiner, there was no indication that Duba did not do a
good job, but, nevertheless, as compensation for the techni-
cal licencing problem, the examiner ordered 60 minutes per
week of direct OT services be provided to John in addition
to the amount already provided for in the IEP. The exam-
iner also found that the social and emotional goals set out
in the IEP “read like boilerplate.” She ordered the District
to do better. In all other respects the IEP was upheld.
The case then moved to the federal district court, where
the judge considered the parties’ cross-motions for summary
judgment without additional evidence. He said the parents
were entitled to damages in the form of one year of compen-
satory occupational therapy, $800 to cover the fee for the
independent evaluation, the use of an “inclusion facilitator”
if one is available at no cost to the District, and, because he
4 Nos. 02-2867 & 02-3001
found them to be prevailing parties, to attorney fees and
costs. The parents’ motion for compensatory education as to
physical therapy, speech therapy, reading, and math was
denied. The School District’s motion was granted upholding
the IEP. The parties cross-appealed in this court and the
appeals were consolidated for our consideration.
In general, the School District appeals the award of
reimbursement to the parents for independent evaluations
of John’s abilities, the order for direct OT services to John,
and the determination that the parents were the prevailing
parties and are thus entitled to attorney fees in this action.
In their cross-appeal, the parents contend that the School
District committed procedural violations in drafting his IEP
and that the School District has demonstrated its inability
to provide adequate services without outside assistance
from an expert who is authorized to supervise the IEP
process.
The IDEA (and predecessor statutes) created a federal
grant program to assist state and local agencies in educat-
ing disabled children. To receive funds, states must provide
the children with the opportunity for a “free appropriate
public education,” or—because the situation calls out for
another acronym—a FAPE. Each student must be offered
special education and related services under an IEP. In
Board of Education v. Rowley, 458 U.S. 176 (1982), the
court set out a method for determining whether a school
district has provided a FAPE: courts must ask whether the
IEP is reasonably calculated to enable the child to receive
an educational benefit and whether the district complied
with the proper procedures for drafting the IEP.
In Heather S. v. State of Wisconsin, 125 F.3d 1045, 1052
(7th Cir. 1997), we discussed guidelines for district courts
considering IDEA cases and noted that the standard of
review “differs from that governing the typical review of
Nos. 02-2867 & 02-3001 5
summary judgment.” The IDEA says that the district court
“shall receive the records of the administrative proceedings,
shall hear additional evidence at the request of a party,
and, basing its decision on the preponderance of the
evidence, shall grant such relief as the court determines is
appropriate.” 20 U.S.C. § 1415(e)(2). So the court can take
new evidence in addition to receiving and reviewing the
administrative record. But when no new evidence is of-
fered—as here—the cases are decided on summary judg-
ment, which is the procedural vehicle for asking the judge
to decide the case on the basis of the administrative record.
Hunger v. Leininger, 15 F.3d 664 (7th Cir. 1994). Even
though it is grounded on an administrative record, the
decision must be based on a preponderance of the evidence,
and the person challenging the decision of the agency bears
the burden of proof. The district court must give “due
weight” to the results of the administrative proceedings and
must not substitute its “notions of sound educational policy”
for those of the school district. Heather S., 125 F.3d at 1053
(quoting Rowley). As Rowley pointed out, courts lack the
specialized knowledge to resolve issues of educational
policy. Once the school district has met the Rowley require-
ments, it has done enough. School districts are not required
to do more than to provide a program reasonably calculated
to be of educational benefit to the child; they are not
required to educate the child to his or her highest potential.
Bd. of Educ. of Murphysboro Cmty. Unit Sch. Dist. No. 186
v. Illinois State Bd. of Educ., 41 F.3d 1162 (7th Cir. 1994).
When the case reaches us,
[w]e review the district court’s judgment as a mixed
question of law and fact. While we thus review the
ultimate determination de novo, in the absence of any
mistake of law, we may only reverse the district court
if its findings were clearly erroneous.
Heather S., 125 F.3d at 1053.
6 Nos. 02-2867 & 02-3001
A primary issue in this case involves occupational
therapy. Ms. Duba, the therapist, was not licensed and so
should have been better supervised. Because of what she
called a “technical violation,” the hearing examiner required
the School District to provide compensatory services in the
amount of 60 minutes per week of direct (not consultative)
occupational therapy services.
The district court upheld that requirement, also seeming
to agree that the licensing violation supported the compen-
satory services. But the district judge also said that the
“evidence is undisputed that John needs direct occupational
therapy services despite the due weight given to the
Hearing Officer’s decision” and “we agree with the Parents
that the Hearing Officer erred by not affording any weight
to the testimony of the independent therapists and as a
result of such reached an erroneous decision.” These find-
ings would seem to support an order for direct OT services
on the merits rather than as compensation for licensing
violations.
The School District contends that neither basis for the OT
services is valid. The technical violation does not support
compensatory services, the School District says, because
courts may order compensatory services under the IDEA
only upon a finding that a school district failed to provide a
FAPE. As to the merits of the issue, the School District
contends that the hearing examiner’s findings that the
school had provided “an exemplary, inclusive education
program” were supported by a preponderance of the evi-
dence.
Compensatory services are well-established as a remedy
under the IDEA. In Board of Education of Oak Park &
River Forest High School District 200 v. Illinois State Board
of Education, 79 F.3d 654, 656 (7th Cir. 1996), we said of
the statute:
Nos. 02-2867 & 02-3001 7
The only specific remedies that it mentions are at-
torneys’ fees and interim relief (see below). But it
authorizes the court to “grant such relief as the court
determines is appropriate,” 20 U.S.C. § 1415(e)(2),
and these courts have assumed, consistent with the
Supreme Court’s generous reading of the provision in
School Comm. of Town of Burlington v. Department of
Education, 471 U.S. 359, 369-70, 105 S.Ct. 1996,
2002-03, 85 L.Ed.2d 385 (1985), that this authorization
encompasses the full range of equitable remedies and
therefore empowers a court to order adult compensatory
education if necessary to cure a violation. Parents of
Student W. v. Puyallup School District, 31 F.3d 1489,
1497 (9th Cir. 1994); Pihl v. Massachusetts Dept. of
Education, 9 F.3d 184, 187-89 (1st Cir. 1993).
Not every violation, of course, warrants compensatory
relief. However, we disagree with the contention that the
violations here are like the “procedural” problems in
Heather S., which primarily involved violations of the
Wisconsin time limits for administrative actions; violations
which were termed “minor.” In this case, the so-called
technical violation is a bit more serious than that. It is a
violation involving the qualifications of the school personnel
who are providing the services. Failure to follow the state’s
requirements for licensing occupational therapists, as set
out in 225 ILCS 75/3(6)(I), is different from a minor proce-
dural violation. Presumably, states maintain standards for
educational personnel to help maintain adequate educa-
tional experiences for all students. A FAPE, surely, is an
education provided by qualified personnel. In fact, specifi-
cally as to occupational therapy, 34 C.F.R. § 300.24(b)(5)(I)
refers to “services provided by a qualified occupational
therapist.” While we are not so naive as to think that
licensing ensures qualifications in all instances, to ignore
licensing requirements is a step in the wrong direction.
8 Nos. 02-2867 & 02-3001
Though it may be a close question, we affirm the order for
compensatory occupational services.
We next consider the School District’s contention that the
parents are not entitled to compensation for the independ-
ent Pathways evaluation. They would be entitled to reim-
bursement for their private evaluations only if the District’s
PT and OT evaluations were not appropriate. Bd. of Educ.
of Murphysboro Cmty. Unit Sch. Dist. No. 186 v. Ill. State
Bd. Of Educ., 41 F.3d 1162 (7th Cir. 1994). The hearing
examiner found that the School District’s evaluations were
appropriate. On the other hand, the district court found
that the School District did not comply with a regulation
which requires it to give the parents the “agency criteria”
when they request an independent evaluation. The district
court’s finding is not supported by a preponderance of the
evidence in the administrative record. Neither was new
evidence offered to the district court to support a different
conclusion. The parents are not entitled to reimbursement.
In the cross-appeal, the parents contend that the School
District “seriously infringed” on their participation in the
IEP process. Unlike the issue involving occupational
therapy, this claim involves what more clearly are proce-
dural violations in the process. Simply labeling a problem
“procedural,” however, does not end the discussion. We have
made clear that certain procedural flaws violate a student’s
rights. In Heather S., 125 F.3d at 1059, we quoted a Ninth
Circuit case—W.G. v. Board of Trustees, 960 F.2d 1479,
1484 (1992)—which said that “procedural inadequacies that
result in the loss of educational opportunity . . . clearly
result in the denial” of a FAPE. The parents want us to go
farther and adopt the rest of the W.G. language, which is
that procedural inadequacies also violate FAPE if they
“seriously infringe the parents’ opportunity to participate in
the IEP formulation process.” W.G., 960 F.2d at 1484. The
parents here complain that the IEP conferences were
rushed and insufficient—that is, that their opportunity to
Nos. 02-2867 & 02-3001 9
participate in the process was infringed. The record does
not support a finding that the parents’ rights were in any
meaningful way infringed. Considerable time was spent on
trying to work out an IEP in conferences at which both the
parents and their advocate participated. It follows, then,
that this is not a proper case to extend W.G. as the parents
request.
The parents also contend that the School District did not
assess John’s progress through achievement testing and
that there was no explanation of why testing was not done.
They also contend that there was no adequate statement of
goals for John and that the IEP failed to adequately provide
for his behavioral and social-emotional needs. We find that
the record supports a finding that the IEP met the Rowley
standards.
Finally, the parents contend that the School District
cannot provide a FAPE to John without supervision,
technical assistance, and training from an outside “Inclu-
sion Facilitator” who would have authority to manage
John’s case, no matter what the cost. The hearing examiner
rejected this contention and found that the school personnel
were well-qualified and trained. The district court had
ordered a facilitator only if there would be no cost to the
School District. The School District points out that the
parents themselves, in a letter, praised one teacher and
said that a teaching assistant was very skilled, attentive,
and dedicated to helping John reach his maximum poten-
tial. The IDEA, as we have said, does not require the School
District to provide the best services possible, and we cannot
find on this record that an outside facilitator was required.
This brings us to the question of attorneys’ fees. The
IDEA allows for discretionary grants of attorneys’ fees
under 20 U.S.C. § 1415(i)(3)(B), which provides:
10 Nos. 02-2867 & 02-3001
In any action or proceeding brought under this section,
the court, in its discretion, may award reasonable at-
torneys’ fees as part of the costs to the parents of a child
with a disability who is the prevailing party.
The district court found that the parents were prevailing
parties and, as such, entitled to an award of attorneys’ fees
from the District. However, the court did not set a precise
dollar award pending this appeal.
Our review of the district court’s decision regarding
whether to award attorneys’ fees is highly deferential, as we
will reverse only for an abuse of discretion. Monticello Sch.
Dist. No. 25 v. George L. and Carolyn L., 102 F.3d 895, 907
(7th Cir. 1996). “An abuse of discretion is found only when
reasonable persons could not take the view espoused by the
district court.” Id.
In the instant case, we cannot say that the district court
abused its discretion, as reasonable persons could believe
the parents were prevailing parties entitled to attorneys’
fees. In Board of Education of Oak Park Dist. 200 v. Nathan
R., the court said:
“Prevailing party” under 20 U.S.C. § 1415(e)(4)(B) has
the same meaning as the phrase does in 42 U.S.C.
§ 1988. According to the Supreme Court, a prevailing
party prevails under § 1988 if he obtains at least some
relief on the merits of his claim such as an enforceable
judgment, consent decree, or settlement.
199 F.3d 377, 382 (7th Cir. 2000) (citations omitted). “[A]
plaintiff ‘prevails’ when actual relief on the merits of his
claim materially alters the legal relationship between the
parties by modifying the defendant’s behavior in a way that
directly benefits the plaintiff.” Farrar v. Hobby, 506 U.S.
103, 111-12 (1992). Here, the parents were awarded a
significant amount of the relief they sought. The amount of
Nos. 02-2867 & 02-3001 11
OT services increased from 30 minutes a week of con-
sultative services to 60 minutes a week of direct services.
Moreover, that the award was compensation for a so-called
technical licensing violation does not mean that the parents
did not prevail. After all, the “prevailing party inquiry does
not turn on the magnitude of the relief obtained.” Id. at 114.
Nonetheless, prevailing party status does not guarantee
attorneys’ fees, as a plaintiff’s degree of success impacts the
reasonableness of a fee award. Monticello Sch. Dist. No. 25,
102 F.3d at 907. In fact, this court has recognized that
given a “simply technical or de minimis” victory, one may
not be entitled to attorneys’ fees at all. See id. In the instant
case, the parents prevailed due to a “technical” violation.
Because the violation was serious in nature and involved a
primary issue in this case, we cannot say that the district
court abused its discretion in finding that the parents were
entitled to some amount of attorneys’ fees. However,
because the parents’ win has been diminished, the district
court should consider the amount of fees to be awarded (if
fees are to be awarded at all) in light of the changed
circumstances occasioned by this opinion.
The judgment of the district court is AFFIRMED as to the
requirement for compensatory occupational therapy
services, the requirement for an inclusion facilitator if it
involves no additional expense to the District, the finding
that the IEP was otherwise adequate, and the determina-
tion that the parents are the prevailing party for purposes
of 20 U.S.C. § 1415(i)(3)(B). The judgment is REVERSED as
to the award to the parents for the Pathways evaluation.
The case is REMANDED to the district court for further
proceedings consistent with this opinion. Each side shall
bare its own costs.
12 Nos. 02-2867 & 02-3001
EVANS, Circuit Judge, concurring in part, dissenting in
part. I join the majority opinion in all respects, except I
would vacate the finding that the parents are the prevailing
party and thus entitled to attorneys’ fees.
America’s public schools (and only public schools, of
course, are subject to the IDEA) are in a financial bind. A
dollar spent on one child is a dollar less to spend on others.
This is a reality that the law should not ignore. It is a
reality that should be kept in mind when awarding “pre-
vailing party” status to those who sue school districts under
the IDEA.
While perhaps no public school system in America is as
troubled as the one in the District of Columbia (certainly
not a district like Evanston’s), what happened there in
recent years is interesting to note. In 1998, that district
paid over $10 million to attorneys for complaining parents
in IDEA cases. For attorneys, the system became “a boom-
ing, lucrative industry.” See Doug Struck and Valerie
Strauss, “Special Ed Law is Big Business; Students’
Attorneys Collectively Receiving Millions in Fees,” The
Washington Post, July 20, 1998, as quoted in Calloway v.
District of Columbia, 216 F.3d 1 (D.C. Cir. 2000).
In noting what happened in the District of Columbia, I’m
not suggesting that the attorneys in this case have done
anything but provide very competent services to John M’s
parents. I am suggesting, however, that because financial
demands on public school districts are getting harder and
harder to meet, requests for attorneys’ fees in cases like
this, which drain taxpayer-funded districts of their ability
to meet other needs, should get close attention from courts.
We should also keep in mind that, unlike successful § 1983
cases which involve vindicating constitutional rights— often
with global implications for other cases—IDEA suits
usually involve only very targeted disputes over the fine-
tuning of IEPs affecting only one student in one district.
Nos. 02-2867 & 02-3001 13
Because of this, I suggest that in determining whether a
party has prevailed under the IDEA, courts should be
rigorous in enforcing the current standard. That standard
says that a prevailing party must obtain relief that “ma-
terially alters the legal relationship between the parties,”
Bd. of Educ. of Oak Park Dist. 200 v. Nathan R., 199 F.3d
377 (7th Cir. 2000). The requirement should have teeth. I
submit that the standard, when properly applied, has not
been satisfied in this case.
The district court’s basis for granting fees, as expressed
in its one-paragraph statement on the issue, was that the
parents were prevailing parties because they “prevailed at
the hearing with respect to Ms. Duba’s license and in the
case at hand with respect to the Inclusion Facilitator and
two procedural violations.” In this court, the only claim to
survive is that, given the fact that her license had not been
issued, Ms. Duba required more supervision. For that rea-
son, and that reason only, the order for compensatory OT
services has been affirmed. Although the order resulted in
a benefit for John, it is important to note that it was not
based on any significant deficiency in his IEP or, for that
matter, in the services the School District was providing. It
was only to make amends for the licensing problem. As I see
it, this minor tinkering did not come close to “materially
altering” the relationship between John’s parents and the
District. I also think even this benefit could probably have
been achieved without litigation. The School District had
already offered to provide increased OT services prior to the
due process hearing; an offer which was rejected. In a letter
of August 28, 2000, the District offered a number of conces-
sions:
(a) review the IEP OT and PT provisions and include
direct OT services—although it believes the current
provisions are appropriate and services may be ap-
propriately delivered through consultation as cur-
rently indicated in the IEP;
14 Nos. 02-2867 & 02-3001
(b) review the social-emotional components of the IEP
and include more explicit goals—although the District
believes the current IEP includes appropriate discus-
sion and goals in this area;
(c) evaluate John’s assistive technology needs and make
appropriate modifications to the IEP, as necessary,
although the parents did not raise this as an issue at
the prior IEP meetings and the District believes the
current IEP addresses computer technology, etc.; and
(d) discuss the reimbursement of the independent OT/PT
in the context of an overall resolution of this matter.
This offer is not, I agree, sufficiently specific for a court to
say with absolute certainty that the School District was
offering more than what the parents obtained by taking the
case to war with the District. But if the offer had been
pursued, the parents might very well have received then
what they are getting now. For these reasons, I cannot
conclude that the parents’ modest “win” in this litigation
materially altered the relationship between the parties. So
on this aspect of the case, I respectfully dissent.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-2-04