Tammy v. Medina City School District

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0382P (6th Cir.)
File Name: 03a0382p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
TAMMY and STEVE BERGER,
as parents and legal guardians
for their minor child, Travis
Berger,
Plaintiffs-Appellants/
Cross-Appellees,
v.
MEDINA CITY SCHOOL
DISTRICT,
Defendant-Appellee/
Cross-Appellant.
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Nos. 01-3874/3912
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 00-02508—John M. Manos, District Judge.
Argued: September 9, 2003
Decided and Filed: October 29, 2003
2 Berger, et al. v. Medina
City School Dist.
Nos. 01-3874/3912
*The Honorable David M. Lawson, United States District Judge for
the Eastern District of Michigan, sitting by designation.
Before: GUY and DAUGHTREY, Circuit Judges;
LAWSON, District Judge.*
_________________
COUNSEL
ARGUED: Stephen O. Walker, Beachwood, Ohio, for
Appellants. Julie Carleton Martin, SCOTT, SCRIVEN &
WAHOFF LLP, Columbus, Ohio, for Appellee. ON BRIEF:
Stephen O. Walker, Beachwood, Ohio, for Appellants. Julie
Carleton Martin, SCOTT, SCRIVEN & WAHOFF LLP,
Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
RALPH B. GUY, JR., Circuit Judge. Plaintiffs, Tammy
and Steve Berger, appeal the judgment entered in this action
brought under the Individuals with Disabilities in Education
Act (IDEA), 20 U.S.C. § 1415, which sought reimbursement
for the tuition plaintiffs paid to have their hearing-impaired
son, Travis, attend private school for the 1999-2000 school
year. The district court found that although the Medina City
School District failed to offer Travis a free appropriate public
education (FAPE), plaintiffs were not entitled to tuition
reimbursement both because the private placement was not
proper and because plaintiffs failed to give notice of their
intention to withdraw their son from the public school.
Plaintiffs’ appeal challenges the district court’s denial of
their requests for reimbursement and for attorney fees as a

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1Describing his hearing loss as profound, the Impartial Hearing
Officer (IHO) indicated that without his hearing aides Travis was unab le
to hear someone shouting two inches from his ear. W ith only his hearing
aides, he could detect various vowel sounds in a quiet room at a distance
of three feet but could not distinguish them. Travis sup plemented his
hearing with some lip reading, but did not know sign language.
“prevailing party.” Defendant Medina cross-appeals from the
determination that it failed to offer Travis a FAPE. After
review of the record and the arguments presented on appeal,
we affirm.
I.
In September 1994, plaintiffs and their five-year-old son,
Travis, moved into the Medina City School District and
enrolled him in Medina’s Kindergarten Center. Travis, born
July 31, 1989, has a profound hearing loss which entitles him
to special education services under the IDEA.1 At plaintiffs’
insistence, Medina provided Travis with a frequency
modulation (FM) system for Travis to use at school. The FM
system allows a teacher or other student to speak into a
microphone that sends a radio signal to a receiver connected
to Travis’s hearing aides. Its purpose is to overcome distance
and noise by functioning as if the speaker is only six inches
from the ear. The staff also was provided in-service training
by Jo Ann Ireland, a consultant from a resource center for
special education.
During the next four years, Travis attended first through
fourth grades at Medina’s Heritage Elementary School, which
had an “open” classroom structure with dividers that did not
reach all the way to the ceiling. In each year, Travis was
educated in a regular education classroom with special
education support; provided additional speech and language
therapy; and offered some “pre-tutoring” of new vocabulary
and concepts. Travis also received speech and language
therapy through the summer breaks. Plaintiffs participated,
4 Berger, et al. v. Medina
City School Dist.
Nos. 01-3874/3912
with the advice of counsel, in the development of an
Individualized Education Program (IEP) during each of those
years. In his first-grade year, Medina provided a “back up”
FM system; speech and language therapy twice a week with
Marjorie Kulbis, who had 25 years’ experience and a master’s
degree in speech and language pathology; and special
education support in the classroom from Eileen Lehrer, a
certified special education teacher, and her aides.
At plaintiffs’ request, the IEP developed in his second-
grade year added articulation goals for speech and language
therapy. In third grade, Ms. Ireland, who was then employed
by defendant as a special education coordinator, provided in-
service training for the staff at Heritage Elementary who were
working with Travis. Travis also began receiving separate
articulation therapy with Gina Ellibee, who had bachelor’s
and master’s degrees in communication disorders with an
emphasis in speech and language pathology. Mrs. Berger
attended most of those therapy sessions. An evaluation
completed at the end of third grade noted that Travis had
demonstrated progress, but that he continued to have
difficulty with comprehension and abstract concepts. His
scores on IQ and achievement tests at that time were in the
average or low normal range.
For fourth grade, Travis was placed in Joan Smith’s regular
classroom with the FM system and support from Mrs. Lehrer
and her aides. As in the past, the IEP, signed in December
1998, continued to include speech and language therapy with
Ms. Kulbis, articulation therapy with Ms. Ellibee, and pre-
tutoring of new vocabulary both in therapy and at home. Mrs.
Smith provided plaintiffs some information on most Mondays
for pre-tutoring purposes and had Travis keep a daily
assignment book.
Although plaintiffs saw a slide in Travis’s grades and
competency test scores from second grade on, it was during
the fourth grade that he lost his enthusiasm for school and

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complained that he did not understand what he was being
asked to do. Travis began having at least two and sometimes
as much as four hours of homework a night. In the first half
of the year, Travis was having difficulty with the math
curriculum and was receiving a “D” in math. As a result, the
IEP team met in February 1999 and agreed that Travis should
receive specialized instruction from a math teacher, Alice
Paul, four times a week for thirty minutes a day. Because this
math intervention program was a regular education program
for “at risk” students, the IEP was not amended to reflect it.
However, the IEP’s objectives for math were modified to
allow Travis to use a calculator, number line, or
multiplication table in doing three-digit addition, subtraction,
and multiplication. The IEP, with those changes, was signed
by everyone, including plaintiffs. In the last quarter of fourth
grade, Travis received a “D” in written language, and an “F”
in both math and reading. Plaintiffs made it known that they
thought Travis should be retained in fourth grade.
On May 18, 1999, the IEP team, including plaintiffs, met to
review the year’s progress and discuss placement for the
following year. Ms. Ireland prepared an outline of reasons
why Travis should not be retained and reviewed them at the
meeting. Emphasizing the importance of support from his
peer group, she also suggested that repeating the fourth grade
would not change the fact that Travis was a “concrete thinker”
who would struggle with an abstract curriculum. Ireland felt
it was better to modify and adapt the fifth-grade curriculum
than to retain him in fourth grade. It was recommended that
Travis be promoted to fifth grade and placed in the resource
room for part of the day to receive small group instruction in
math and language arts and to allow the instruction to be
presented in a more concrete form. There was also discussion
about whether Travis would be placed in a fifth-grade
classroom with or without support from Mrs. Lehrer. There
was testimony that, either way, the resource room aides would
be involved in Travis’s regular education classroom.
6 Berger, et al. v. Medina
City School Dist.
Nos. 01-3874/3912
Mrs. Lehrer, Mrs. Smith, Ms. Paul, and Ms. Ellibee all
agreed that resource room placement would be appropriate.
Each member of the IEP team, including plaintiffs, initialed
and dated the IEP with the understanding that Travis would
be promoted to fifth grade and placed in the resource room for
part of the day. Plaintiffs concede that they consented to this
placement, did not advise the school that they rejected this
plan, and did not mention the possibility of removing Travis
from Heritage Elementary. The question of which fifth grade
classroom Travis would be placed in was left open, but the
principal, Barbara Gunkelman, advised plaintiffs by telephone
during the summer that Travis would be in Mrs. Ellenberg’s
regular fifth grade class without Mrs. Lehrer and her aides.
In a letter dated July 23, 1999, plaintiffs requested a due
process hearing. The letter, sent to the superintendent,
Charles Irish, stated as follows:
My Wife and I are not happy and have not been happy
with the program the Medina Schools have offered our
child. We believe that the service offered was not
sufficient to meet our child[’s] needs. I guess the last
straw was the school[’s] decision to pass him on to the
next grade. With the years of failure in the previous
program and our child[’s] growing unhappiness we have
decided to look elsewhere to meet his needs. We are
requesting a due process hearing and as part of that
process we will be looking to the school to reimburse us
for the cost of properly educating him elsewhere. We
have “Whose Idea Is It Anyway” please send any other
documents pertaining to our rights.
This letter was referred to Dr. Brad Garner, Medina’s Director
of Student Services, who notified the state of plaintiffs’
request for a due process hearing. He then called plaintiffs
and offered to meet with them about their concerns, or, in the
alternative, to submit the matter to the state’s mediation
process. Mr. Berger declined, advising Dr. Garner that Travis

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2Defendant prepared an application for “flow through” funds for
MCA to use for special education services, but MCA declined.
was going to attend another school and that Medina was
going to pay for it. Plaintiffs also sent a note to the principal
dated August 24, 1999, which stated only that Travis would
not be attending Heritage Elementary that year.
Before writing to defendant, plaintiffs had visited Medina
Christian Academy (MCA), a private sectarian school, and
arranged for Travis to repeat fourth grade in the fall. MCA
provided no special education services, but offered smaller
class sizes and a “closed” classroom building with carpeted
hallways. Plaintiffs took it upon themselves to arrange for
Travis to continue receiving speech and language therapy
outside school.2
Plaintiffs testified that Mrs. Chase, Travis’s fourth-grade
teacher at MCA, received training on how to use the FM
system and took care to speak directly into the microphone
and to repeat questions or comments from classmates. Mrs.
Chase provided all of her students with detailed weekly
lesson plans, which plaintiffs used to pre-tutor Travis at
home. Travis’s class at MCA had 18 students, while his
fourth-grade class at Heritage had 23 or 24 students.
Plaintiffs testified that Travis did well at MCA, his grades
improved, he learned his math facts, and he was reading at or
above a fourth-grade level.
The due process hearing was conducted before an Impartial
Hearing Officer (IHO) over fourteen days between September
and December 1999. In a written decision dated May 23,
2000, the IHO found that while defendant failed to provide
Travis with a FAPE, plaintiffs were not entitled to
reimbursement. Both sides pursued an administrative appeal
to a State Level Review Officer (SLRO), but the IHO’s
8 Berger, et al. v. Medina
City School Dist.
Nos. 01-3874/3912
3Defendant also argued in the administrative pro ceed ings that it
would violate the Establishment Clause to order reimbursement for tuition
paid to a secular private school. Bo th the IH O and the SLR O rejected this
defense in reliance on Peck v. Lansing School District, 148 F.3d 619 (6th
Cir. 1998) (provision of remedial services to disabled student in parochial
school would not violate the Establishment Clause). This argument has
been aba ndoned on ap peal.
findings and conclusions were affirmed in a written decision
dated August 23, 2000.
Plaintiffs commenced this action and defendant
counterclaimed, each seeking review of adverse findings by
the SLRO. On cross-motions for review of the administrative
decision, the district court granted both motions in part and
found, based on a modified de novo review, (1) that although
the procedural defects in the IEP were de minimus, the IEP
was substantively flawed so as to deprive Travis of a FAPE;
(2) that plaintiffs were not entitled to reimbursement both
because MCA was not a “proper placement” and because
plaintiffs unilaterally withdrew Travis without first giving
defendant an opportunity to remedy the IEP; and (3) that
plaintiffs were not entitled to attorney fees as a “prevailing
party” under the IDEA. Judgment was entered accordingly
on July 17, 2001. Plaintiffs appealed and defendant cross-
appealed.3
II.
Board of Education v. Rowley, 458 U.S. 176, 206 (1982),
requires the district court to undertake a “modified de novo
review” of the administrative decision in an action brought
under the IDEA. In doing so, the district court must make an
independent examination of the evidence and base its decision
on a preponderance of the evidence contained in the complete
record, while giving “due weight” to the factual findings
made in the state administrative proceedings; particularly
when educational expertise is essential to those findings. N.L.

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v. Knox County Sch., 315 F.3d 688 (6th Cir. 2003); Knable v.
Bexley City Sch. Dist., 238 F.3d 755, 764 (6th Cir.), cert.
denied, 533 U.S. 950 (2001); Burilovich v. Board of Educ. of
Lincoln Consol. Sch., 208 F.3d 560, 565 (6th Cir.), cert.
denied, 531 U.S. 957 (2000). We recently explained that in
applying this standard, the “administrative findings in an
IDEA case may be set aside only if the evidence before the
court is more likely than not to preclude the administrative
decision from being justified based on the agency’s presumed
educational expertise, a fair estimate of the worth of the
testimony, or both.” Burilovich, 208 F.3d at 567.
On appeal, however, this court must apply a clearly
erroneous standard of review to the district court’s findings of
fact and a de novo standard of review to its conclusions of
law. Knable, 238 F.3d at 764; see also Tucker v. Calloway
County Bd. of Educ., 136 F.3d 495, 503 (6th Cir. 1998); 20
U.S.C. § 1415(i)(2) (formerly 20 U.S.C. § 1415(e)(2)).
A. Tuition Reimbursement under the IDEA
The Supreme Court has explicitly held “that IDEA’s grant
of equitable authority empowers a court ‘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,
is proper under the Act.” Florence County Sch. Dist. Four v.
Carter, 510 U.S. 7, 12 (1993) (quoting Sch. Comm. of
Burlington v. Dept. of Educ., 471 U.S. 359, 369 (1985)).
Parents who “unilaterally change their child’s placement
during the pendency of review proceedings, without the
consent of state or local school officials, do so at their own
financial risk.” Burlington, 471 U.S. at 373-74. In that
situation, the parents are “entitled to reimbursement only if a
federal court concludes both that the public placement
violated the IDEA and that the private school placement was
proper under the Act.” Carter, 510 U.S. at 15. See also
Knable, 238 F.3d at 763. Although plaintiffs appeal from the
10 Berger, et al. v. Medina
City School Dist.
Nos. 01-3874/3912
determination that the private school placement was not
proper, we turn first to the questions raised by defendant’s
cross-appeal from the finding that the public school
placement violated the IDEA by denying Travis a FAPE.
1. FAPE
In determining whether the public placement violated the
IDEA, the reviewing court must undertake a twofold inquiry:
“First, has the State complied with the procedures set forth in
the Act? And second, is the individualized educational
program developed through the Act’s procedures reasonably
calculated to enable the child to receive educational benefits?”
Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982)
(footnotes omitted). There is no violation of the IDEA if the
school district has satisfied both requirements. Id. at 207;
Knable, 238 F.3d at 763.
With respect to the procedural prong, the district court,
agreeing with the SLRO, found that the IEP developed during
Travis’s fourth-grade year was procedurally deficient because
it failed to properly state present levels of educational
performance that specifically related to meaningful annual
goals or specific short-term objectives as was required by the
IDEA, 20 U.S.C. § 1414(d)(1)(A) (formerly § 1401(a)(20)).
See Rowley, 458 U.S. at 182 & 206 n.27. Defendant has not
objected to this finding, perhaps because several of
defendant’s witnesses conceded that the IEP was flawed, but
emphasizes the district court’s further finding that the
deficiencies were de minimus and did not violate the IDEA
because the record was clear that “information absent from
the IEP was nonetheless known to all the parties.” Doe v.
Defendant I, 898 F.2d 1186, 1191 (6th Cir. 1990).
Plaintiffs take issue with this further finding, arguing that
they are entitled under “equitable principles” to
reimbursement because of the “egregious nature” of
defendant’s procedural violations. A procedural violation of

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4Com pare Cleveland Heigh ts-Univ. H eights City Sch. Dist. v. Boss,
144 F.3d 391, 39 9 (6th Cir. 1998) (failure of IEP to provide any
app ropriate criteria for measuring the studen t’s progress was not
technical, but “went to the heart of the substance of the plan”), with Kings
Local Sch. Dist. v. Zalazny, 325 F.3d 724 ,732 (6th Cir. 200 3) (failure to
have parents present at a meeting caused no substantive harm where
parents were integrally involved in each step of the development and
implementation of the IEP).
the IDEA is not a per se denial of a FAPE. Knable, 238 F.3d
at 765. Rather, a procedural violation will constitute a denial
of a FAPE only if it causes substantive harm to the child or
his parents; such as seriously infringing on the parents’
opportunity to participate in the IEP process, depriving an
eligible student of an IEP, or causing the loss of educational
opportunity. Id. at 765-66.
The evidence in this case showed that plaintiffs participated
in the IEP meetings, had regular communication with the
teachers and special education staff, and were engaged in
Travis’s schooling on a daily basis. Travis’s educational
performance was being evaluated both in the classroom and
by standardized testing, and specific action was taken to
address the difficulties he was having in math. It was not
clear error for the district court to find the procedural
deficiencies in the IEP did not deny Travis a FAPE.4
With respect to the substantive prong of the Rowley test, the
district court agreed with the SLRO’s determination that the
IEP’s special education program and related services were
“improperly and haphazardly executed” and therefore were
not reasonably calculated to enable Travis to receive
educational benefits. Defendant’s cross-appeal maintains that
this determination was not supported by the evidence as a
whole. The district court explained that
a number of witnesses testified that daily “pre-tutoring”
services were essential to Travis’s educational success.
12 Berger, et al. v. Medina
City School Dist.
Nos. 01-3874/3912
The [SLRO] found, however, that the pre-tutoring
services were offered only twice a week for twenty
minutes, and that what was offered by the school was
haphazard and did not include assistance with all
subjects. The school district’s own witnesses, most
notably Mrs. Ireland, Ms. Smith and Mrs. Kulbis,
admitted that pre-tutoring was often disorganized and
depended heavily on the parents’ involvement. This
being so, the Court can find no reason to reject the
finding of the [SLRO] and holds that the school board’s
program for Travis was not “reasonably calculated” to
provide Travis with “educational benefits.”
(Citations and footnotes omitted.) The district court also
observed that Mrs. Smith “went so far as to admit that she
was not even sure what subjects were covered by the speech
therapist, the only school staff member doing any pre-tutoring
with Travis, and never spoke with the parents concerning
their pre-tutoring efforts.”
The significance of pre-tutoring has to do with aiding the
normal process of auditory-cognitive closure, which is the
unconscious filling in of gaps in our hearing based on prior
knowledge, language, and experience. Pre-tutoring involves
the introduction of new vocabulary or information before the
lesson or discussion in the classroom. According to Dr. Carol
Flexer, an audiologist who testified on behalf of plaintiffs,
pre-tutoring is a “critical accommodation” that allows a child
to participate and extract meaningful information from the
teaching and discussions that occur in the classroom.
Defendant does not dispute that pre-tutoring is a critical
service for Travis and most hearing-impaired students.
Instead, defendant argues, in essence, that the district court
was not only wrong about what pre-tutoring Travis was
receiving but also improperly focused on pre-tutoring to the
exclusion of the other services and educational benefits that
Travis was provided under the IEP. The adequacy of the

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abbreviated lesson plans sent home by Mrs. Smith was
contested in the due process proceeding, and the SLRO noted
the dispute as to how much pre-tutoring was or should have
been provided by the parents based on the information sent
home by Mrs. Smith. Defendant emphasizes that, in addition
to the twice-weekly pre-tutoring by Ms. Kulbis, Mrs. Lehrer
and her aides assisted Travis on a daily basis by explaining
things when he did not understand, repeating or clarifying
information, and looking over his class work. This assistance,
defendant argues, included “all the essential elements of pre-
tutoring.”
There was certainly evidence of shortcomings in the pre-
tutoring Travis received, whether from his parents, Ms.
Kulbis, or Mrs. Lehrer and her aides, yet we cannot lightly
dismiss defendant’s contention that Travis was nonetheless
provided an IEP that was reasonably calculated to provide
educational benefit. The IEP provided Travis with speech
and language therapy, articulation therapy, accommodation in
the classroom through the FM system and placement near the
teacher, assistance during academic subjects from special
education staff in the classroom, and individualized
instruction in math and language arts by placement in the
resource room for part of the day. Defendant also contends
that, notwithstanding the slide in his grades during the year he
was in Mrs. Smith’s class, there was evidence that Travis was
still making educational progress as demonstrated by his
standardized test scores; his increased participation in
classroom discussions; and his progress in speech, language,
and articulation therapy. Because we conclude that the
outcome of this appeal does not depend on this issue,
however, we assume without deciding that pre-tutoring
services were so critical to the IEP that the inadequacies in
defendant’s delivery of pre-tutoring services denied Travis a
FAPE.
14 Berger, et al. v. Medina
City School Dist.
Nos. 01-3874/3912
5Plaintiffs’ initial claim of error, that the private placement was
rejected for failure to satisfy statutory requirements, completely misreads
the district court’s rationale on this issue.
6The district court observed that if educational progress was
determinative, reimbursement would depend on the “mere happenstance”
of whethe r the child “did well” in a private placem ent, which could mean
the denial of reimbursement for even specialized educational programs for
disab led stud ents if the child did no t show academic results. T his would
2. Private Placement
Challenging the district court’s finding on this issue,
plaintiffs contend that their placement of Travis at MCA was
appropriate because it was “reasonably calculated to enable
[Travis] to receive educational benefits.” Knable, 238 F.3d
at 771 n.6. Plaintiffs are correct that the statutory
requirements of a FAPE do not apply to private school
placements. Carter, 510 U.S. at 13-14. Even so, parents will
not be entitled to reimbursement for a private school
placement unless it offers their disabled child “an education
otherwise proper under [the] IDEA.” Id. at 12-13.5
Plaintiffs maintain that the placement at MCA met Travis’s
needs because it was a “quiet” school, with smaller classes
and a better, more attentive teacher. As proof of “educational
benefit,” plaintiffs reported that Travis was getting better
grades, had finally learned his “math facts,” and was reading
at a fourth-grade level. Academic results have been
recognized as an important factor in determining whether an
IEP is reasonably calculated to provide educational benefits.
See Defendant I, 898 F.2d at 1191 (quoting Rowley, 458 U.S.
at 207 n.28); Roland M. v. Concord Sch. Comm., 910 F.2d
983, 991 (1st Cir. 1990). Nonetheless, evidence of academic
progress at a private school does not itself establish that the
private placement offers adequate and appropriate education
under the IDEA. Rome Sch. Comm. v. Mrs. B., 247 F.3d 29,
33 (1st Cir. 2001).6 Nor are parents entitled to reimbursement

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not be consistent with the purposes of the IDEA.
7Converse ly, we have held that the fact that private school placement
is more restrictive will not bar parents from receiving reimbursement
under Burlington and Carter. See K nab le, 238 F.3d at 770; Cleveland
Heights-Un iv. Heights Sch. Dist. v. Boss, 144 F.3d 39 1 (6th Cir. 1998).
for private school just because the private placement is less
restrictive than the public school placement. See Milford Sch.
Dist. v. William F., No. 97-1506, 1997 WL 696108, at **6
(1st Cir. Nov. 10, 1997) (unpublished disposition) (“Even if
the private school was less restrictive, it would still have to be
a placement deemed appropriate by an authorized decision
maker in terms of educational benefit.”).7
The crux of the district court’s decision on this issue, like
those of the administrative hearing officers in this case, was
the fact that MCA did not provide Travis with any of the
special education services he needed; in particular, neither the
speech and language therapy that he undeniably needed, nor
the pre-tutoring services that were found to be lacking at
Heritage Elementary. MCA declined to apply for “flow
through” funds that could be used to provide special
education services for Travis, and plaintiffs arranged for his
speech and language therapy outside school and provided pre-
tutoring at home.
On appeal, plaintiffs suggest that pre-tutoring was only
recommended to overcome problems caused by the
“structurally flawed environment” at Heritage Elementary.
On the contrary, Dr. Flexer testified that pre-tutoring was an
essential service for most hearing-impaired students and is
required to remedy problems they have with auditory-
cognitive closure. Moreover, after visiting Heritage, the IHO
specifically found both that the classroom setting was
“relatively quiet” and that the FM system was intended to
overcome ambient noise.
16 Berger, et al. v. Medina
City School Dist.
Nos. 01-3874/3912
We agree with the IHO’s assessment that although nothing
in Carter or Burlington indicates that a private school must be
readily identifiable as a “special education placement,” a
unilateral private placement cannot be regarded as “proper
under the Act” when it does not, at a minimum, provide some
element of special education services in which the public
school placement was deficient. See In re Owen J. Roberts
Sch. Dist., 29 IDELR 742 (SEA Pa. 1998) (administrative
appeal denying reimbursement for private school offering
small class sizes, but no special education services). It must
be kept in mind that retroactive reimbursement is an equitable
remedy for the failure of the public school to provide a FAPE
to a disabled student. Burlington, 471 U.S. at 371-74. As
such, a private school placement must be consistent with the
purposes of the IDEA. See Gillette v. Fairland Bd. of Educ.,
932 F.2d 551, 554 (6th Cir. 1991) (“Removing a child from
a partially mainstreamed program at a public school, which
otherwise provides an appropriate academic instruction and
the only objection to that program was a failure to fully
mainstream, and placing that child in a non-mainstreamed
program in a private school does not satisfy the goals of the
Act.”)
We agree with the district court that the placement MCA
offered to Travis, although apparently a good education, was
not “proper under the IDEA.” As such, plaintiffs were not
entitled to reimbursement under Carter.
B. Notice to Defendant
The district court also denied plaintiffs’ request for
reimbursement for the separate and independent reason that
plaintiffs failed to inform defendant that they objected to the
IEP before removing Travis from the public school. Even
before the IDEA was amended to explicitly require such
notice, this court held that dissatisfied parents were required
to complain to the public school to afford the school a chance
to remedy the IEP before removing their disabled child from

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the school. See Wise v. Ohio Dept. of Educ., 80 F.3d 177, 185
(6th Cir. 1996); Hines v. Tullahoma City Sch. Sys., No. 97-
5103/04, 1998 WL 393814 (6th Cir. June 15, 1998)
(unpublished disposition). As amended, however, the IDEA
provides that reimbursement for a private school placement
may be reduced or denied if parents did not provide notice,
either at the most recent IEP meeting prior to removal, or in
writing 10 business days prior to removal of the child from
the public school, “that they were rejecting the placement
proposed by the public agency to provide a [FAPE] to their
child, including stating their concerns and their intent to
enroll their child in a private school at public expense.” 20
U.S.C. § 1412(a)(10)(C)(iii)(I)(aa) (effective June 4, 1997).
The administrative decisions in this case denied
reimbursement in reliance on Wise and Hines, while the
district court found plaintiffs had not complied with
§ 1412(a)(10)(C)(iii). The record is clear that at the
conclusion of the May 1999 IEP team meeting, plaintiffs
signed the IEP indicating their agreement with the decision to
promote Travis to fifth grade and place him in the resource
room for part of the day. Plaintiffs admitted during the due
process hearing that they did not inform the IEP team at the
May 1999 meeting either that they rejected the placement, or
that they intended to enroll Travis in a private school.
Plaintiffs argue that the July 23, 1999 letter requesting a
due process hearing constituted written notice that satisfied
the statute because Travis was not officially removed until
more than 10 days later. The evidence showed, however, that
plaintiffs arranged to enroll Travis at MCA before requesting
the due process hearing or advising defendant of its specific
objections and intent to remove their child from public
school. Not only did the letter demonstrate that plaintiffs
were removing Travis from the public school, but their
subsequent rejection of the offer to either have another
meeting or engage in mediation through the Department of
Education confirmed it. We are not persuaded by the
18 Berger, et al. v. Medina
City School Dist.
Nos. 01-3874/3912
8The IDEA does not require parents to meet the notice requirement
if one of the following exce ptions app lies: “(I) the p arent is illiterate and
cannot write in English; (II) comp liance . . . would likely result in
physical or serious emotional harm to the child; (III) the school prevented
the parent from providing such notice; or (IV) the parents had not
received notice . . . of the notice requirement in clause (iii)(I).” 20 U.S.C.
§ 1412 (a)(10)(C)(iv).
9W e need no t address the district court’s further finding that
plaintiffs’ refusal to engage in mediation provided an independent basis
for denying their request for reimbursement under 20 U.S.C.
§ 1412(a)(10 )(C)(iii)(III) (Reimbursement may also be reduced or denied
“upon a judicial finding of unreasonableness with respect to actions taken
by the parents.”).
assertion that Travis was not removed from the public school
until plaintiffs sent a letter to the principal in late August
1999, stating that Travis would not be attending Heritage
Elementary. We are satisfied that the district court did not err
in finding that plaintiffs failed to provide the notice required
by the IDEA.
In apparent reliance on the exceptions to the notice
requirement, plaintiffs claim an absence of proof in the record
that they ever received information regarding the 1997
amendments.8 The district court found that the proper
procedure for withdrawing a student, as well as the limitations
on reimbursement, were described in a pamphlet entitled
“Whose IDEA is This?” Plaintiffs admitted to having
received the pamphlet and did not deny receiving a version
that included information about the 1997 amendments. In
fact, Mrs. Berger testified that they received a new copy of
the pamphlet at the beginning of every school year. The
pamphlet that was distributed at the beginning of the 1998-
1999 school year would have included the addendum with the
relevant information. We find no error in the district court’s
decision to deny reimbursement for failure to provide notice
as required by the IDEA.9

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Nos. 01-3874/3912 Berger, et al. v. Medina
City School Dist.
19
In a final argument, plaintiffs strenuously argue that their
failure to give notice required by the statute should be
excused by defendant’s failure to comply with other technical
requirements of the IDEA. Those alleged violations, making
placement decisions outside the IEP process and failing to
give plaintiffs prior notice of the intention to change Travis’s
educational placement, will not relieve plaintiffs of the
requirement that they provide notice under the statute of their
intention to unilaterally withdraw Travis.
As for the claim that defendant made placement decisions
outside the IEP process, plaintiffs have not shown it was clear
error to find that there was an IEP and that the May 1999
meeting was an IEP meeting. More importantly, the fact that
school personnel conferred informally before the May 1999
meeting, formulated opinions, and came to the meeting with
recommendations concerning Travis’s placement for the
following year does not demonstrate either a violation of the
IDEA, or “serious infringement” of plaintiffs’ right to
participate in the IEP meeting. N.L. v. Knox County Schs.,
315 F.3d 688, 692 (6th Cir. 2003) (applying Burilovich, 208
F.3d at 568-69).
Next, plaintiffs correctly observe that the IDEA requires
that parents be provided prior written notice whenever the
school district proposes or refuses to initiate or change the
educational placement of the child. See 20 U.S.C.
§ 1415(b)(3); 34 C.F.R. § 300.503. Without determining
whether or not this provision was in fact violated, the district
court found that no substantive harm to plaintiffs’ ability to
participate meaningfully in the IEP meetings resulted. As
such, any technical violations were also found insufficient to
excuse the parents’ obligation to complain before unilaterally
withdrawing from the public school. While we agree with
this assessment, close examination of the case law relied on
by plaintiffs reveals that those cases actually address the first
Rowley prong, whether the procedural violations denied the
child a FAPE, and do not hold that reimbursement may be
20 Berger, et al. v. Medina
City School Dist.
Nos. 01-3874/3912
ordered without regard to either the appropriateness of the
private placement or the parents’ own violations of the
IDEA’s notice requirement.
Particularly telling is the decision in Hall v. Vance County
Board of Education, 774 F.2d 629 (4th Cir. 1985), in which
the court found the parents’ failure to initiate proceedings was
a direct result of the public school’s noncompliance with
procedural safeguard requirements of the IDEA.
Consequently, the procedural violations themselves were
found sufficient to establish a failure to provide a FAPE under
Rowley. Id. at 635. In a footnote, the court took care to note
there was no question that the private placement was
appropriate. Id. at 636 n.7. See also Ash v. Lake Oswego Sch.
Dist., 980 F.2d 585, 589 (9th Cir. 1992) (addressing
procedural violations and approving district court’s opinion,
which specifically found the private placement was “proper
under the Act”); Babb v. Knox County Sch. Sys., 965 F.2d
104, 109 (6th Cir. 1992) (as a direct consequence of failure to
adhere to procedural requirements, child deprived of an IEP).
Plaintiffs rely on the statement that “reimbursement after a
unilateral placement can be appropriate, upon a finding of
sufficiently serious procedural failures by the school district.”
Doe v. Metro. Nashville Pub. Sch., 133 F.3d 384, 388 (6th
Cir. 1998) (violation of “child find” obligations). That
statement, however, was supported by citation to both Hall
and Ash. Also, the court reversed summary judgment on the
question of the impact of the defendant’s procedural
violations without indicating that any challenge had been
made to the private placement. See also Tenn. Dep’t of
Mental Health v. Paul B., 88 F.3d 1466, 1475 & 1478 (6th
Cir. 1996) (question of fact existed whether failure to give
notice of proposed change in placement caused ambiguous
statements at the IEP meeting to mislead the parents about
what decision was being made at that time). These cases do
not stand for the proposition that the parents’ failure to
comply with the notice requirement in the statute may be

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Nos. 01-3874/3912 Berger, et al. v. Medina
City School Dist.
21
excused by demonstrating a school’s violation of procedural
requirements under the IDEA.
C. Attorney Fees
Plaintiffs may be considered “prevailing parties” for
purposes of attorney fees “if they succeed on any significant
issue in litigation which achieves some of the benefit the
parties sought in bringing suit.” Hensley v. Eckerhart, 461
U.S. 424, 433 (1983). The “touchstone” of this inquiry is
“the material alteration of the legal relationship of the
parties.” Texas State Teachers Ass’n v. Garland Indep. Sch.
Dist., 489 U.S. 782, 792-93 (1989). The IDEA provides that
a court, “in its discretion, may award reasonable attorneys’
fees as part of the costs to the parents of a child with a
disability who is the prevailing party.” 20 U.S.C.
§ 1415(i)(3)(B) (formerly 20 U.S.C. § 1415(e)(4)).
It is clear that both the administrative proceedings and this
lawsuit were brought to recover the cost of educating Travis
at the private school for the 1999-2000 school year. Having
determined that plaintiffs were not entitled to reimbursement,
the district court found plaintiffs were not “prevailing parties”
eligible for attorney fees under the IDEA. Plaintiffs maintain
they were prevailing parties by virtue of their success in
demonstrating that defendant failed to provide Travis with a
FAPE. That finding, while favorable to plaintiffs, does not
constitute success on a significant issue in this litigation.
Plaintiffs’ heavy reliance on Krichinsky v. Knox County
Schools, 963 F.2d 847 (6th Cir. 1992), is misplaced as it is
easily distinguished from the case at bar. There, the parents
contested the IEP and sought to force the school to place their
child in a residential facility, but did not remove him from the
school. As a result, even though the parents did not succeed
in forcing a change to residential placement, they were found
to have succeeded on two significant issues because they
convinced the court to order defendant to provide their child
22 Berger, et al. v. Medina
City School Dist.
Nos. 01-3874/3912
increased speech and occupational therapy. Id. at 850. We
find no error in the district court’s determination that
plaintiffs were not prevailing parties eligible for attorney fees
under the IDEA.
AFFIRMED.

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