STEPHEN H. ANDERSON, Circuit Judge.
Plaintiff and appellant Molly O'Toole, by and through her parents Kevin and Kathy Fulgham O'Toole, appeals the district court's grant of summary judgment to the defendant Olathe District Schools Unified School District No. 233 in this case involving the Individuals With Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1485.
Molly was born on May 6, 1982, and experienced health problems shortly after her birth. At thirty months of age, she was diagnosed with a hearing problem and soon thereafter began using hearing aids. Subsequent evaluations revealed a moderate to severe sensorineural hearing loss in her right ear and a moderate to profound hearing loss in her left ear.
In the fall of 1988, Molly entered the District's hearing impaired program located at Scarborough Elementary School ("SEC"). While she attended SEC, an individualized educational program ("IEP") was developed for her, in accordance with the IDEA.
This case primarily involves the adequacy of the IEP developed for Molly on February 23, 1993, and subsequently amended on August 23, 1993. The IEP team which developed Molly's February IEP included Kevin O'Toole, Kathy Fulgham, and a multi-disciplinary group of SEC personnel. The district court described the meeting as "pleasant and congenial." O'Toole v. Olathe Dist. Schs. Unified Sch. Dist. No. 233, 963 F.Supp. 1000, 1004 (D.Kan.1997). At the conclusion of the February IEP meeting, Mr. O'Toole received a copy of the IEP and consented to Molly's continued placement at SEC.
During the months following the February IEP meeting, Mr. O'Toole and Ms. Fulgham received reports on Molly's progress. As the district court noted, "these monitoring reports indicated that [Molly] met certain objectives, made adequate progress toward certain objectives, and did not make adequate progress toward other objectives." Id. The district court further observed, and the record supports, that "Mr. O'Toole kept in close contact with [Molly's hearing impaired teacher Deb] Stryker concerning [Molly's] academic progress between February and May of 1993." Id.
In June of 1993, Mr. O'Toole had Molly evaluated at the Central Institute for the Deaf ("CID"), located in St. Louis, Missouri. The CID's report recommended the following for Molly:
Appellant's App. Vol. 4 at 62-63. The CID's evaluation included the assessment that Molly's "nonverbal intellectual abilities are within the low average range and her verbal abilities are below the average range.... It is likely that Molly has learning problems in addition to her hearing impairment." Id. at 62. In July 1993 Molly was accepted as a full-time residential student at the CID. When Mr. O'Toole inquired about reimbursement for tuition and/or expenses incurred by attendance at the CID, the District informed him that tuition reimbursement was unavailable and that it would inquire into expenses reimbursement. Mr. O'Toole and Ms. Fulgham then requested an IEP meeting in late August.
The District assembled an IEP team consisting of many of the same people as attended the February IEP meeting, with a few changes. The district court found that at the August 23 IEP meeting, "the IEP team agreed to follow all of the CID's recommendations." O'Toole, 963 F.Supp. at 1005. The O'Tooles challenge this finding. In any event, various changes were made to Molly's IEP, and at the end of the meeting, all members of the IEP team except the O'Tooles recommended that Molly remain at SEC. Mr. O'Toole disagreed and signed a form terminating the District's services to Molly. There is some disagreement about whether Mr. O'Toole was notified of his right to challenge the adequacy of the IEP through the IDEA's and Kansas' due process procedures. The O'Tooles thereafter enrolled Molly at the CID, where, according to
Shortly after the August IEP meeting, the District notified Mr. O'Toole that his request for reimbursement of expenses for Molly's attendance at the CID was denied. Mr. O'Toole and Ms. Fulgham then requested a due process hearing regarding Molly's placement at the CID.
The O'Tooles appealed the hearing officer's decision to a reviewing officer appointed by the state board of education. The O'Tooles requested the opportunity to present additional evidence. After reviewing the record, the reviewing officer denied the O'Tooles' request to present new evidence, determining that additional evidence was unnecessary.
The reviewing officer then affirmed the hearing officer's decision on all but three issues. On those three issues, the reviewing officer found that the annual goals and objectives, description of related services, and statement of present levels of functioning generated in the February and August IEPs failed to meet the procedural requirements of Kansas law and the IDEA. The reviewing officer therefore remanded the matter for a determination whether the O'Tooles were due the prospective relief of requiring that the District comply with all procedural requirements in developing future IEPs.
The O'Tooles thereafter sought review in federal district court, see 20 U.S.C. § 1415(e)(2), and the District filed a cross-appeal challenging the reviewing officer's decision concerning the IEPs' compliance with the IDEA and Kansas law and the availability of prospective relief. The district court granted the District's motion for summary judgment, holding that: (1) Kan. Stat. Ann. § 72-962(f) did not establish a higher educational standard or obligation than the IDEA; (2) Molly's IEPs "provided an adequate statement of [her] present educational performance levels;" (3) Molly's IEPs "adequately set forth annual goals;" (4) Molly's IEPs "adequately set forth short-term instructional objectives and procedures by which [her] progress could be measured on at least a twelve week basis;" (5) Molly's IEPs "contained an adequate statement of what specific related services [Molly] was to receive;" and (6) the District "has complied with the IDEA's procedures and ... [Molly's] IEPs were reasonably calculated to enable [Molly] to receive more than de minimis educational benefits as required by the IDEA." O'Toole, 963 F.Supp. at 1012-14. The court also denied the O'Tooles' motion for enlargement of time to file a formal written request to present additional evidence under 20 U.S.C. § 1415(e)(2), finding that the O'Tooles' "counsel did not file this motion prior to the expiration of discovery and ... he has failed to show excusable neglect justifying his late filing." O'Toole, 963 F.Supp. at 1014-15. The court further held that, procedural violations aside, the O'Tooles had "failed to justify the need for the additional evidence." Id. at 1015.
On appeal, the O'Tooles argue: (1) Kansas has adopted a different and higher educational
The IDEA is designed to enable children with disabilities to have access to a FAPE designed to meet their particular needs. See Murray, 51 F.3d at 925. The Supreme Court has held that the "`basic floor of opportunity' provided by the [IDEA] consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child." Rowley, 485 U.S. at 201, 108 S.Ct. 963 (emphasis added). A state need not provide services "sufficient to maximize each child's potential." Id. at 198, 108 S.Ct. 963. States are, however, free to provide a higher level of education services if they wish. See Fowler, 128 F.3d at 1438 ("`State standards that impose a greater duty to educate disabled children, if they are not inconsistent with federal standards, are enforceable in federal court under the IDEA.'") (quoting Seattle Sch. Dist. No. 1 v. B.S., 82 F.3d 1493, 1499 n. 2 (9th Cir.1996)).
"The IEP is the basic mechanism through which th[e] goal [of providing a FAPE] is achieved for each disabled child." Murray, 51 F.3d at 925; see also 20 U.S.C. § 1401(a)(20).
20 U.S.C. § 1401(a)(20); see also 34 C.F.R. § 300.346(a).
Judicial review in IDEA cases is not the typical administrative review. The district court must "independently review the evidence contained in the administrative record, accept and review additional evidence, if necessary, and make a decision based on the preponderance of the evidence, while giving `due weight' to the administrative proceedings below." Murray, 51 F.3d at 927. Because we review the district court's grant of summary judgment, we review the district court's decision de novo, applying the same standard as it did.
There is an added wrinkle in this case, however, because the reviewing officer and the hearing officer disagreed on whether the goals and objectives, the description of related services, and the present levels of educational performance set forth in the IEPs met the procedural requirements of the IDEA and Kansas law. Thus, the question arises whether the "due weight" is to be given to the conclusion of the reviewing officer or the hearing officer on issues on which they disagreed.
Some circuits "defer to the final decision of the state authorities," observing that "it makes no difference that there may have been some disagreement among the state officers during the course of the state proceeding." Heather S. v. Wisconsin, 125 F.3d 1045, 1053 (7th Cir.1997) (quoting Thomas v.
Thus, we will give "due weight" to the reviewing officer's decision on the issues with which he disagreed with the hearing officer, unless the hearing officer's decisions involved credibility determinations and assuming, of course, that the record supports the reviewing officer's decision. We review any legal conclusions, however, under our usual de novo standard. We also bear in mind the Supreme Court's admonition, often repeated, that "courts must be careful to avoid imposing their view of preferable educational methods upon the States." Rowley, 458 U.S. at 207, 102 S.Ct. 3034.
I. Whether Kansas Has a Higher Educational Standard
At the time Molly's IEPs were developed, Kansas provided as follows:
Kan. Stat. Ann. § 72-962(f)(2) (emphasis added). In 1994, the section was amended to read as follows:
Id. (emphasis added). The O'Tooles argue that either version of the statute imposes a higher standard for the provision of special education services than Rowley's "some benefit" standard under the IDEA. While they do not articulate a precise standard, the O'Tooles appear to argue that Kansas obligates school districts to provide special education services which will maximize each child's potential. We disagree.
First, as another Kansas federal district court judge has stated in rejecting the identical argument, Kan. Stat. Ann. § 72-962(f)(2) "does not — by its terms — bind the State of Kansas to anything at all." Logue v. Shawnee Mission Pub. Sch. Unified Sch. Dist. No. 512, 959 F.Supp. 1338, 1350 (D.Kan.1997). Rather, it simply defines "exceptional children." It is Kan. Stat. Ann. § 72-966(a) which obligates school districts to "provide special education services for all exceptional
Moreover, even were we to assume that § 72-962(f)(2) obligated school districts to educate exceptional children as defined therein, the language itself does not compel the conclusion that Kansas has adopted a higher standard than that of Rowley. The pre-1994 amendment language defined exceptional children as those who need services "to enable them to progress toward the maximum of their abilities." Requiring "progress toward" their maximum abilities is not obviously different, and more demanding, than requiring some educational benefit. Additionally, § 72-961 states the legislative intent behind Kansas' special education statutes: "It is the purpose and intention of this act to provide for educational opportunities which will contribute to the development of each exceptional child in this state in accord with his or her abilities and capacities." (emphasis added). That language is comparable to Rowley's standard, and certainly indicates the Kansas legislature did not intend to obligate school districts to maximize the educational opportunities provided to exceptional children.
Furthermore, while the O'Tooles urge us to make much of the fact that the amended language defining exceptional children as those requiring services "to enable them to receive educational benefits in accordance with their abilities," seems more similar to Rowley's standard, we cannot conclude from the fact of the amendment alone that the earlier standard was higher.
The O'Tooles further argue that, even if their construction of § 72-962 is not compelled by the language and timing of amendments to the statute, a Kansas administrative regulation, when read in conjunction with § 72-962, supports their argument. We disagree. According to the O'Tooles, the particular regulation provided as follows at the time relevant to this case:
In sum, absent any other clear indication by the Kansas legislature that it so intended, neither the language of the relevant statutes, nor the timing and content of any amendments to those statutes, convinces us that the legislature purposely adopted a standard requiring Kansas schools to provide educational services to exceptional children at a higher level than the IDEA requires.
II. Adequacy of the IEPs
In reviewing the adequacy of an IEP, "[w]e begin ... by asking whether the State complied with IDEA procedures, including whether the IEP conformed with the requirements of the Act. We then determine whether the IEP was reasonably calculated to enable [the student] to receive educational benefits." Urban v. Jefferson County Sch. Dist. R-1, 89 F.3d 720, 726 (10th Cir.1996) (citation omitted). We have held, however, that "[t]echnical deviations from the requirements of section 1401(a)(20) ... do not render an IEP entirely invalid; to hold otherwise would `exalt form over substance.'" Id. (quoting Doe v. Defendant I, 898 F.2d 1186, 1190 (6th Cir.1990)). The Supreme Court has explained the importance of compliance with the IDEA's procedural requirements in this way:
Rowley, 458 U.S. at 206, 102 S.Ct. 3034.
Moreover, if we are evaluating an IEP prospectively only, we agree with the Third Circuit which has said that "`the measure and adequacy of an IEP can only be determined as of the time it is offered to the student, and not at some later date.... Neither the statute nor reason countenance "Monday Morning Quarterbacking" in evaluating the appropriateness of a child's placement.'"
The Kansas regulations specify in more detail than the relevant statutes what an IEP must contain:
Kan. Admin. Regs. § 91-12-41(f).
The Federal regulations echo the statutory requirements for an IEP, see 20 U.S.C. § 1401(a)(20); 34 C.F.R. § 300.346(a), but Appendix C to Part 300 of the federal regulations provides more detailed requirements in a question-and-answer format.
The Appendix describes the purpose of the goals and objectives requirement as providing
Finally, in response to the question whether there is a "prescribed format or length for an IEP," the Appendix states:
Id. question 56 (emphasis added).
A. Compliance with Procedural Requirements
We consider first whether the IEPs conformed to the procedural requirements of the IDEA and Kansas law.
1. Present Levels of Performance
Molly's IEPs, as amended, contained a statement of her present levels of performance in a number of specific areas, including listing her strengths and needs. It included the pre-printed statement "See Special Ed. file for specialists' reports." Appellant's App. Vol. 4 at 44. It described her general intelligence as "low-average to borderline ability." Id. Under "Educational performance" it referenced scores ranging from 55 to 77 on various measures of educational achievement, such as reading and math. Id. They rated her motor skills as 5 years and 10 months. Id. at 66.
The hearing officer determined that the statement of present levels of educational performance was adequate. The reviewing officer disagreed, finding that "[t]he strengths and needs listed do not accurately or clearly describe the effects of M[olly]'s disability on her performance in the areas listed[;][r]aw scores are reported to describe present levels of functioning[;][and][t]he raw scores reported are not self-explanatory and no explanation is included on the IEP." Review Officer's Decision at 15-16, Addendum to Appellant's Br. at 40-41.
The district court in turn reversed the reviewing officer on this point, deciding that the O'Tooles "actively participated in the formulation of [Molly's] IEPs during which [her] present level of educational performance was thoroughly discussed and explained." O'Toole, 963 F.Supp. at 1012. The court's other rationale for reversing the reviewing officer on this point was that Molly's "IEPs also address all of the issues mentioned in [Kan. Admin. Regs.] § 91-12-41(f)(1) with the requisite specificity." Id.
We agree with the reviewing officer that the IEP does not clearly convey Molly's present levels of educational performance in a way that relates those present levels to her disability, nor does it, on its face, explain the import of the raw test scores contained therein. However, it does refer to the specialists' reports, which presumably contain more detail and which the O'Tooles do not argue were unavailable for reference. Moreover, there is no doubt that Molly's parents and her teachers were fully aware of Molly's present levels of educational performance and discussed them in detail in formulating her IEPs. Given that one of the primary goals of the procedural requirements of the IDEA is to ensure parental participation in the formulation of a child's IEP, and to ensure that the program developed actually
2. Annual Goals and Short-Term Objectives
The February IEP listed six annual goals: (1) to improve reading skills; (2) to improve English language skills; (3) to facilitate academics; (4) to facilitate language; (5) to improve articulation; and (6) to enhance sport activities. Appellant's App. Vol. 4 at 45. It listed three items under "Long-range planning": (1) "improve compliance behavior"; (2) "improve self concept"; and (3) "improve academic skills." Id. at 46. To further the first annual goal (improving reading skills), the IEP listed seven short-term objectives.
The hearing officer held that while "more specific or more carefully tailored information could be provided ... [t]here is no rational basis to believe that procedural inadequacies compromised the student's right to an appropriate education or that the parents' opportunity to participate in the formulation process has been hampered." Memorandum and Order at 18, Addendum to Appellant's Br. at 18. The reviewing officer held that certain of the short-term objectives listed under the annual goals did not set intermediate steps between the present levels of performance and the goals and/or did not "include objective criteria or evaluation procedures and data collection schedules for determining at least every 12 weeks whether the short-term objectives are being achieved." Review Officer's Decision at 14, Addendum to Appellant's Br. at 39. The officer also concluded that the five annual goals were inadequate, as they "give the parent absolutely no idea of what his child is supposed to be able to accomplish within a year's time." Id. at 16, Addendum to Appellant's Br. at 41. The district court reversed the reviewing officer, stating "[b]ecause there is no legal authority [requiring the District to set more specific annual goals] and because the plaintiff's parents played an active role in the formulation of the plaintiff's IEP, the court concludes that the plaintiff's IEPs adequately set forth annual goals." O'Toole, 963 F.Supp. at 1013. With respect to the short-term objectives, the court concluded that:
We agree with the district court that the annual goals and short-term objectives comply with the procedural requirements of the IDEA and Kansas law. As the court noted, there is no legal authority requiring a particular level of specificity in the statement of annual goals. While some of the goals were general (to facilitate academics, to facilitate language, to present functional level curriculum), others clearly conveyed an articulable goal — to improve reading skills, to improve English language skills, to improve articulation, to improve social skills, to enhance sports activities. Moreover, while we agree that the short-term objectives for implementing the annual goals did not contain specific criteria for evaluating progress at least every twelve weeks, they contained either explicit or implicit criteria for evaluating general progress toward achieving the goals.
3. Related Services
A FAPE under the IDEA includes special education and related services, if necessary. 20 U.S.C. §§ 1412, 1401(a)(18). The regulations define "related services" as including "transportation and ... speech pathology and audiology, psychological services, physical and occupational therapy, . . . counseling services, . . . school health services, social work services in schools, and parent counseling and training." 34 C.F.R. § 300.16(a). State regulations require "a statement of the specific education services and related services needed by the child." Kan. Admin. Regs. § 91-12-41(f)(5).
Molly's IEPs stated that she would receive speech/language services for 30 minutes per day and transportation services. They also provided that an occupational therapist would "screen current motor functioning;" Molly would receive school social work services, school counseling and an inclusion facilitator "as appropriate;" she would receive an annual audiology evaluation; and a behavior specialist would consult with the IEP team "as appropriate." Appellant's App. Vol. 4 at 70.
The hearing officer found that "as appropriate" was "not a clear indication of the level of services to be provided." Memorandum and Order at 19, Addendum to Appellant's Br. at 19. She also found, however, that "[n]o evidence was introduced that a related service was requested and denied." Id. The reviewing officer disagreed with the hearing officer's ultimate disposition of this issue, finding that the IEPs did not meet the procedural requirements in the IDEA and Kansas law for describing the related services, inasmuch as "[o]nly the description of speech/language services includes a statement of the amount of services to be provided." Review Officer's Decision at 17, Addendum to Appellant's Br. at 42. The district court held that the statement of related services complied with the IDEA and Kansas law because
O'Toole, 963 F.Supp. at 1013-14.
We agree with the reviewing officer that the term "as appropriate" fails adequately to specify the level of related services the District committed to provide, as required by the IDEA and Kansas law. However, the record supports the findings by the hearing officer and the district court that Molly was never denied any related service her parents sought for her.
B. Whether the IEPs Were Reasonably Calculated to Provide a FAPE
Besides having to consider procedural deficiencies, we must also consider whether the IEPs were reasonably calculated to provide a FAPE and whether Molly actually received educational benefits. See Urban, 89 F.3d at 726. Both the hearing officer and the reviewing officer found that Molly made various degrees of progress during the 1993 school year. While her progress was not steady in all areas, and her parents testified as to the general difficulties, emotional and otherwise, that she had with school and school work, the record fully supports the officers' conclusions by a preponderance of the evidence.
Additionally, the August addendum to Molly's IEP reflected a real attempt by the District to respond to the O'Tooles' frustration with her progress. It incorporated a number of modifications based upon Molly's CID evaluation, reduced her time in the regular classroom, provided more related services, and modified her curricular goals to reflect her functioning level. We must evaluate this IEP prospectively only, however, since the O'Tooles' removal of Molly immediately following the August IEP meeting rendered
Furthermore, the fact that she made more progress, and by her parents' account was happier, at the CID, does not compel the conclusion that the CID was the appropriate placement for her under the IDEA and Kansas law, and that her IEP as implemented at SEC was inappropriate. As we have said, "`the "appropriate" education required by the Act is not one which is guaranteed to maximize the child's potential.'" Urban, 89 F.3d at 727 (quoting Johnson v. Independent Sch. Dist. No. 4, 921 F.2d 1022, 1025-26 (10th Cir.1990)). And as the Second Circuit recently acknowledged, "[a] disabled child is `not ... entitled to placement in a residential school merely because the latter would more nearly enable the child to reach his or her full potential.'" Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, No. 97-7155, 1998 WL 177971, at *20 (2d Cir. April 16, 1998) (quoting Abrahamson v. Hershman, 701 F.2d 223, 227 (1st Cir.1983)); see also Heather S., 125 F.3d at 1057 ("The school district is required by the statute and regulations to provide an appropriate education, not the best possible education, or the placement the parents prefer.") (citation omitted); Fort Zumwalt Sch. Dist., 119 F.3d at 613 ("IDEA does not require the best possible education or superior results."). Accordingly, an IEP is not inadequate "simply because parents show that a child makes better progress in a different program." Walczak, 142 F.3d at 132; see also Fuhrmann, 993 F.2d at 1039-40.
We therefore hold that the record supports the conclusion that Molly's IEPs were reasonably calculated to confer educational benefit on her and she made sufficient progress toward achieving her IEP goals in the 1993 school year. The IDEA and Kansas law require no more.
III. Exclusion of Evidence
The O'Tooles next argue that the district court and the hearing officer violated the IDEA by refusing to permit them to submit additional evidence, including evidence "relating to the impact of the introduction of sign language into a hearing impaired child's educational program." Appellant's Br. at 41.
The O'Tooles first argue the district court erred in refusing to admit additional evidence, although they do not specify exactly what evidence they wished to have admitted.
20 U.S.C. § 1415(e)(2) provides that the district court in an IDEA case "shall receive the records of the administrative proceedings [and] shall hear additional evidence at the request of a party." We have held that the district court has discretion to determine if such additional evidence is necessary. See Murray, 51 F.3d at 927; see also Monticello Sch. Dist. No. 25 v. George L., 102 F.3d 895, 901 (7th Cir.1996); Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 759-60 (3d Cir.1995); Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1473 (9th Cir.1993). The district court denied the O'Tooles' motion for enlargement of time to file a formal written request to present additional evidence because their counsel failed to explain "why he did not timely identify and produce such evidence during the discovery period, which closed over three months prior to the filing of this motion." O'Toole, 963 F.Supp. at 1014. We review
The O'Tooles also argue that the hearing officer erred in precluding the presentation of "evidence as relates to the impact that sign language has on the development of spoken language skills." Appellant's Br. at 41. They acknowledge that the Supreme Court has said that "once a court determines that the requirements of the Act have been met, questions of methodology are for resolution by the States." Rowley, 458 U.S. at 208, 102 S.Ct. 3034; see also Lachman v. Illinois State Bd. of Educ., 852 F.2d 290, 292 (7th Cir.1988). They also do not dispute that, in general, the debate about whether sign language or spoken language is the best way to educate the hearing impaired involves a dispute about methodology. The O'Tooles attempt to distinguish Rowley and the other cases by arguing that this case does not involve a dispute about the methodology to be used in an appropriate placement, or in choosing between two appropriate placements, but rather, in this case, the choice of methodology itself renders the District's placement (i.e., at SEC) inappropriate.
Despite the O'Tooles' effort to cast this methodological debate as a debate about appropriate placement, we conclude that, in reality, the O'Tooles' complaint relates to the best methodology for educating a hearing impaired child. That is precisely the kind of issue which is properly resolved by local educators and experts. Thus, we perceive no error in the hearing officer's decision not to permit the introduction of evidence as to which methodology best serves a hearing impaired child.
IV. District Court's Reliance on Local Rule
Finally, the O'Tooles argue the district court erred in relying on its local rule, D. Kan. R. 56.1, to exclude evidence in its consideration of the District's motion for summary judgment. Rule 56.1 requires motions for summary judgment to identify disputed facts and provide citations to the record in support thereof. The O'Tooles' argument appears to be that the district court, in requiring compliance with Rule 56.1 and excluding evidence submitted in violation of the rule, somehow violated its obligation under the IDEA to conduct a modified de novo review of the administrative record and any other materials submitted by the parties and accepted by the court.
The O'Tooles do not dispute, as they could not, that summary judgment can be granted in IDEA cases. However, as everyone acknowledges, summary judgment in such cases is somewhat unusual, in light of the district court's obligation to independently review the record and reach a decision based on a preponderance of the evidence. We perceive neither an inherent inconsistency between following a rule like Rule 56.1 and following the requirements of the IDEA, nor do we perceive any actual failure by the district court in this case to exercise its review properly under the IDEA. In any event, we have conducted our own independent review of the record in affirming the judgment of the district court.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Furthermore, as the district court held, the pre-1994 amendment language, which was in effect at the time Molly's IEPs were written, was enacted before the IDEA and before Rowley. "[I]t is impossible to infer an intent to expand the federal scheme simply from the enactment of this statute when the language in question predates the federal scheme." Doe v. Board of Educ., 9 F.3d 455, 457-58 (6th Cir.1993).
Similarly, in David D. v. Dartmouth Sch. Comm., 775 F.2d 411 (1st Cir.1985), the First Circuit noted that the Massachusetts Supreme Judicial Court had interpreted state education law as requiring that special education programs be administered "`to assure the maximum possible development of a child with special needs.'" Id. at 423 (quoting Stock v. Massachusetts Hosp. Sch., 392 Mass. 205, 467 N.E.2d 448, 453 (1984)).
By contrast, we have no definitive interpretation by a Kansas court of the substantive standard imposed by Kansas special education statutes, nor has the Kansas legislature made the kind of broad declaration of policy as did the North Carolina General Assembly. See Doe, 9 F.3d at 458 (in holding that the state did not impose a higher standard than the IDEA, the court observed that "there are no Tennessee state court decisions interpreting the special education statute in the manner suggested by the appellant").
Appellant's App. Vol. 4 at 48. The IEP stated that she was to pursue these short-term objectives five hours per week. Id.
Appellant's App. Vol. 4 at 49. The IEP stated that she was to pursue these short-term objectives 2½ hours per week. Id.
Appellant's App. Vol. 4 at 50. The IEP stated she was to pursue these short-term objectives 3½ hours per week. Id.
Appellant's App. Vol. 4 at 51. The IEP stated Molly was to pursue these short-term objectives for 2½ hours per week.
Appellant's App. Vol. 4 at 52. The IEP stated she was to pursue these objectives for 2½ hours per week.
Appellant's App. Vol. 4 at 53.
Appellant's App. Vol. 4 at 72. To implement the annual goal of presenting functional level curriculum, the Addendum listed the following short-term objectives:
Id. at 74. On a page labeled "Recommendations to Enhance the Instructional Program" the Addendum listed the following:
Id. at 70.
Additionally, the District's IEP monitoring forms show that Molly was making adequate progress on most of her short-term objectives. Id. at 40, 56. The fact that she had not fully met most of those objectives does not indicate she was not getting educational benefit. As indicated, both administrative officers found she had received educational benefit.
Moreover, we cannot overlook the fact that immediately prior to the time period in question, Molly's biological mother had died, and Mr. O'Toole testified that Molly was understandably adversely affected by that tragedy.