County School Board of Henrico County, Virginia v.  Z.P., a minor by and through his parents and next friends; R.P.; N.M.P.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 COUNTY SCHOOL BOARD OF HENRICO
COUNTY, VIRGINIA,
Plaintiff-Appellee,
v. No. 03-2338 
Z.P., a minor by and through his
parents and next friends; R.P.;
N.M.P.,
Defendants-Appellants. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CA-03-396-3)
Argued: September 29, 2004
Decided: February 11, 2005
Before WIDENER, TRAXLER, and GREGORY, Circuit Judges.
Reversed and remanded with instructions by published opinion. Judge
Traxler wrote the majority opinion, in which Judge Widener joined.
Judge Gregory wrote a dissenting opinion.
COUNSEL
ARGUED: Cassie R. Craze, Natasha Umbertis, UNIVERSITY OF
RICHMOND, School of Law, Disability Law Clinic, Children’s Law
Center, Richmond, Virginia, for Appellants. Joseph Thomas Tokarz,

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II, Assistant County Attorney, COUNTY OF HENRICO, Richmond,
Virginia, for Appellee. ON BRIEF: Adrienne E. Volenik, Director,
Disability Law Clinic, Joanne V. Stanley, Third Year Law Student,
UNIVERSITY OF RICHMOND, School of Law, Children’s Law
Center, Richmond, Virginia, for Appellants. Joseph P. Rapisarda, Jr.,
County Attorney, COUNTY OF HENRICO, Richmond, Virginia, for
Appellee.
OPINION
TRAXLER, Circuit Judge:
Z.P. is a young boy with autism. Pursuant to its responsibilities
under the Individuals with Disabilities Education Act ("IDEA"), the
County School Board of Henrico County, Virginia, formulated an
individualized education plan for Z.P. for the 2002-03 school year.
Z.P.’s parents believed the plan to be inadequate and they rejected it,
choosing instead to leave Z.P. in private school. The parents initiated
a state administrative action seeking to require the School Board to
pay the costs of Z.P.’s private placement. The state hearing officer
ruled in favor of the parents, and the School Board challenged that
decision in federal district court. The district court rejected the analy-
sis of the hearing officer, granting summary judgment in favor of the
School Board. The parents appeal. We reverse and remand with
instructions that the district court reconsider the question of the appro-
priateness of the individualized education plan proposed for Z.P.
I.
A.
Congress enacted the IDEA, in part, "to ensure that all children
with disabilities have available to them a free appropriate public edu-
cation that emphasizes special education and related services designed
to meet their unique needs and prepare them for employment and
independent living." 20 U.S.C.A. § 1400(d)(1)(A) (West 2000).
Accordingly, the IDEA requires all states receiving federal funds for
education to provide disabled schoolchildren with a "free appropriate
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public education" ("FAPE"). 20 U.S.C.A. § 1412(a)(1)(A) (West
2000).
A FAPE "consists of educational instruction specially designed to
meet the unique needs of the handicapped child, . . . supported by
such services as are necessary to permit the child to benefit from the
instruction." Board of Educ. v. Rowley ex rel. Rowley, 458 U.S. 176,
188-89 (1982) (internal quotation marks omitted).1 The appropriate
education required, by the IDEA, however, should not be confused
with the best possible education. . . . [O]nce a FAPE is
offered, the school district need not offer additional educa-
tional services. That is, while a state must provide special-
ized instruction and related services sufficient to confer
some educational benefit upon the handicapped child, the
Act does not require the furnishing of every special service
necessary to maximize each handicapped child’s potential.
MM ex rel. DM v. School Dist., 303 F.3d 523, 526-27 (4th Cir. 2002)
(citations, internal quotation marks, and alterations omitted).
Although the IDEA does not require that a state provide the best edu-
cation possible, "Congress did not intend that a school system could
discharge its duty under the [Act] by providing a program that pro-
duces some minimal academic advancement, no matter how trivial."
Hall ex rel. Hall v. Vance County Bd. of Educ., 774 F.2d 629, 636
(4th Cir. 1985).
A school provides a FAPE by developing an "Individual Educa-
tional Program" ("IEP") for each disabled child. IEPs "must contain
statements concerning a disabled child’s level of functioning, set forth
measurable annual achievement goals, describe the services to be pro-
1The Court in Rowley was actually addressing requirements of the "Ed-
ucation of the Handicapped Act," see Rowley, 458 U.S. at 179, which,
after being amended in 1990, became the IDEA. See Gadsby ex rel. Gad-
sby v. Grasmick, 109 F.3d 940, 942 n.1 (4th Cir. 1997). "Since the Edu-
cation of the Handicapped Act and IDEA are the same legislative act,
however, we will refer only to IDEA, even when discussing cases that
interpreted the Act before its title was changed by the 1990 amend-
ments." Id.
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vided, and establish objective criteria for evaluating the child’s prog-
ress." MM, 303 F.3d at 527; see 20 U.S.C.A. § 1414(d)(1)(A). An IEP
is sufficient if it is "reasonably calculated to enable the child to
receive educational benefits." Rowley, 458 U.S. at 207.
B.
Autism is a developmental disorder that affects a child’s ability to
communicate, use imagination, and establish relationships with oth-
ers. See Amanda J. ex rel. Annette J. v. Clark County Sch. Dist., 267
F.3d 877, 883 (9th Cir. 2001). Children with autism generally have
significant deficits in language development, behavior, and social
interaction. One of the primary ways that children learn is through
imitation of the actions and sounds that they see and hear. Autistic
children, however, generally have a greatly reduced ability to imitate.
Autistic children also lack normal joint attention skills—the ability to
follow another’s gaze and share the experience of looking at an object
or activity. Because these deficits affect the way autistic children
learn and develop,
[e]arly diagnosis is crucial . . . . [E]ducation (of children as
well as of parents and teachers) is the primary form of treat-
ment, and the earlier it starts, the better. Education covers a
wide range of skills or knowledge—including not only aca-
demic learning, but also socialization, adaptive skills, lan-
guage and communication, and reduction of behavior
problems—to assist a child to develop independence and
personal responsibility.
Without early identification and diagnosis, children suf-
fering from autism will not be equipped with the skills nec-
essary to benefit from educational services.
Amanda J., 267 F.3d at 883 (citations and internal quotation marks
omitted).
Z.P. was diagnosed as severely autistic when he was two. As the
state hearing officer found, Z.P. has significant communication defi-
cits: at 24 months, Z.P. spoke no words and at 31 months he could
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not follow verbal commands. Z.P. lacks normal joint attention skills
and has very little ability to stay "on task." When he was 44 months
old, Z.P. could stay on task independently for about five minutes and
could quietly wait unattended for approximately 30 seconds. Z.P. is
easily frustrated, which can lead to disruptive behaviors such as cry-
ing, biting, slapping, kicking, and sweeping items off a table. Z.P.
also has deficits in gross motor skills and significant deficits in fine
motor skills.
Like many autistic children, Z.P. when given the opportunity will
engage in self-stimulatory behavior, often referred to as "stimming."
Stimming consists of repetitive patterns of behavior such as flapping
of the hands, rocking back and forth, or repeating a word or a sound.
Stimming is often "an all-consuming behavior that directly interferes
with [an autistic child’s] ability to engage in the environment appro-
priately. . . . and directly interferes with the child’s ability to learn."
J.A. 366-67. Self-stimulatory behavior in autistic children is self-
reinforcing, such that the more they engage in the behavior, the more
they want to engage in the behavior. Absent appropriate supervision
or intervention, stimming can become "the dominant behavior for
kids with autism." J.A. 367.
Z.P. has several different forms of self-stimulatory behaviors,
including humming and wiggling long slender objects between his
fingers while staring at them out of the corner of his eye. Without
intervention, Z.P. would engage in stimming "all day long." J.A. 429.
After Z.P. was diagnosed, the parents’ search for help led them to
what is now known as the Faison School. They enrolled him at Faison
in April 2001, when he was not quite three years old. The Faison
School uses the "applied behavioral analysis" ("ABA") approach to
teaching autistic children. ABA is an iteration of the "Lovaas
method," which "involves breaking down activities into discrete tasks
and rewarding a child’s accomplishments. . . . [The method] has been
widely modified over the years . . . , [but] common characteristics
include intensive training one-on-one, 30-40 hours per week, discrete
trial therapy (DTT), and an in-home component (as opposed to ther-
apy in a professional setting)." G ex rel. RG v. Fort Bragg Dependent
Sch., 343 F.3d 295, 300 n.6 (4th Cir. 2003) (citations, internal quota-
tion marks, and alterations omitted). At Faison, a team comprised of
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a teacher and teaching assistants work with the students; the school
has four masters-level teachers for each student. One assistant is
assigned to each student and is always with that student. The student
and his assistant work in a private classroom for much of the day,
moving into group sessions for certain activities. Z.P. attends Faison
six hours a day, five days a week, thus receiving 30 hours of one-on-
one instruction each week. Z.P.’s parents and his older sister have all
received training in ABA methods, and they use the ABA methods
with Z.P. at home. While at Faison, Z.P. has made real progress in
some areas, and little progress in other areas.
C.
In October 2001, the School Board identified Z.P. as eligible for
special education and related services. The School Board met with the
parents and developed an IEP for the 2001-02 school year. The par-
ents rejected that IEP, leaving Z.P. at Faison for that school year. The
adequacy of the 2001-02 IEP is not at issue in this appeal.
In the summer of 2002, the School Board evaluated Z.P. to deter-
mine his then-current level of performance, testing Z.P. and observing
him at Faison. In the fall of 2002, the School Board and the parents
met to develop an IEP for the 2002-03 school year. The IEP called
for Z.P. to be placed in the pre-school autism class at Twin Hickory
Elementary School.
The Twin Hickory program primarily uses the "TEACCH" method,
a method for teaching autistic children that was developed in North
Carolina and has been adopted by many school districts throughout
the country. The TEACCH method differs from the ABA method in
many respects. It places greater emphasis on visual skills, encourages
independent work on individual skills, and makes extensive use of
group instruction. The Twin Hickory teacher, however, made it clear
that she incorporates other methodologies in her classroom, including
some aspects of ABA therapy.
The Twin Hickory program is staffed by a teacher and a full-time
assistant. Twin Hickory has three-hour sessions in the morning and
afternoon; during the 2002-03 school year, four students attended the
morning session and five attended the afternoon session. One of the
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students during the morning session had his own aide who worked
one-on-one with that student. In each session, students in the Twin
Hickory program typically receive about 15 minutes of one-on-one
instruction by the teacher, plus some additional one-on-one instruc-
tion by the assistant.
In apparent recognition of the severity of Z.P.’s autism, the Board’s
proposed IEP called for Z.P. to attend both the morning and afternoon
session at Twin Hickory. The Board had never before made such a
recommendation—all other students attended one session or the other,
but not both. The IEP also called for 30 minutes of direct (one-on-
one) occupational therapy once a week and 30 minutes of speech ther-
apy three times a week.
Z.P.’s parents requested that the Board provide him with a full-time
aide. This request was apparently neither formally rejected or
accepted—the IEP stated that the IEP "[t]eam did not refuse/reject
this [request] however was unable to determine time frame for train-
ing." J.A. 1484.
The parents were not satisfied with the IEP proposed by the School
Board. Their primary concern was that the class size at Twin Hickory
would prevent Z.P. from receiving the amount of direct (one-on-one)
instruction required to keep him focused and on task, particularly
since the IEP did not guarantee Z.P. a full-time aide. The parents
therefore rejected the IEP, choosing instead to leave Z.P. at the Faison
school. After the parents rejected the IEP, they were told by a school
employee that an aide had been hired. The Board never formally noti-
fied the parents that an aide would be or was in fact hired, and the IEP
was not amended to reflect that an aide for Z.P. was hired.
The parents thereafter requested a due process hearing to challenge
the appropriateness of the School Board’s 2002-03 IEP. See 20
U.S.C.A. § 1415(f)(1) (West 2000). In accordance with Virginia’s
IDEA procedures, an evidentiary hearing was held before a state hear-
ing officer, who heard testimony from numerous witnesses, consid-
ered extensive documentary evidence, and personally observed the
Faison and Twin Hickory classrooms.
The hearing officer concluded that the Board’s 2002-03 IEP did not
provide Z.P. with a free appropriate public education. The hearing
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officer found that Z.P. has a very limited ability to work indepen-
dently and that he "aggressively engages" in self-stimulating activity
when not attended to in a one-on-one situation. J.A. 7. The hearing
officer concluded that when Z.P. is engaged in self-stimulatory
behavior, he is "so engaged in the activity that his ability to learn is
precluded." J.A. 7. In light of the testimony establishing that Z.P.
would receive approximately 30 minutes per day of one-on-one
instruction at Twin Hickory, the hearing officer concluded that Z.P.’s
tendency to self-stimulate could not be adequately kept in check at
Twin Hickory, thus precluding Z.P. from learning in that environ-
ment:
Given the number of other children, the requirement to work
independently, the natural distractions at Twin Hickory and
[Z.P.’s] lack of communication skills, social behavior,
inability to stay on task for more than a few minutes, his
fear of other children and his severe propensity to self stim-
ulate and his inability to learn when self-stimulating,
[Z.P.’s] ability to access the curriculum offered at Twin
Hickory would be so impaired as to deny him educational
benefit.
J.A. 12-13.
The hearing officer concluded that the Faison School was an appro-
priate placement for Z.P. and that the School Board was therefore
obligated to pay for the cost of Z.P.’s placement at the Faison School
for the 2002-03 school year.2 See School Comm. v. Department of
Educ., 471 U.S. 359, 369 (1985) (concluding that retroactive reim-
bursement of private placement costs is an available remedy under
IDEA if the school’s IEP does not provide a FAPE).
2The hearing officer also determined that the IEP was substantively
deficient and did not provide Z.P. with a free appropriate education
because it did not include extended school year services. In addition, the
hearing officer concluded that two failings he identified as procedural
rather than substantive—the omission of a behavioral intervention plan
and the failure to indicate how the school would measure compliance
with several goals—rendered the IEP legally inadequate. Our disposition
of this appeal does not require consideration of these issues.
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The Board then instituted this action in federal court seeking
review of the hearing officer’s determination. The district court did
not take additional evidence, but instead reviewed the record of the
proceedings before the state hearing officer. The district court noted
that it was required to give due weight to the findings of the state
hearing officer. The district court, however, concluded that the hear-
ing officer had so substantially departed from the fact-finding norm
that his findings were entitled to no weight.
According to the district court, the hearing officer improperly
accepted the testimony of the parents’ witnesses, without giving
proper consideration to the testimony of the School Board’s wit-
nesses. The district court concluded that the School Board’s witnesses
were entitled to "great weight," J.A. 1689, and that the hearing officer
at a minimum was required to explain why he chose not to credit the
testimony of the School Board’s witnesses. In this regard, the district
court noted that the Fourth Circuit has repeatedly said that reviewing
courts should not "second-guess the educational judgments of school
employees." J.A. 1690. The district court never explicitly concluded
that the 2002-03 IEP provided Z.P. with a free appropriate public edu-
cation. The court, however, recounted favorably the testimony of the
Board’s witnesses in which they expressed their belief that the IEP
was appropriate. The district court therefore appears to have implic-
itly concluded that the 2002-03 IEP provided Z.P. with a FAPE. The
district court rejected the hearing officer’s analysis and granted sum-
mary judgment in favor of the Board. The parents appeal.
II.
On appeal, the parents contend that the district court failed to give
proper deference to the hearing officer’s factual findings and legal
conclusions. The parents argue that the hearing officer’s determina-
tion that the 2002-03 IEP did not provide Z.P. with a free appropriate
public education was supported by the record and the district court
therefore erred by setting aside the hearing officer’s decision and
granting judgment to the School Board. For its part, the School Board
contends that the hearing officer failed to give proper deference to the
considered views of its professional educators that the 2002-03 IEP
was appropriate, and that the district court therefore properly rejected
the hearing officer’s conclusions.
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A.
The IDEA authorizes an aggrieved party to bring an action in fed-
eral court challenging the decision rendered in the state administrative
proceeding. See 20 U.S.C.A. § 1415(i)(2)(A) (West 2000). Actions
authorized under this provision are procedurally unique in that they
are independent civil actions in which the district court considers the
record of the state administrative hearing, as well as any new evi-
dence offered by a party, and makes findings based on the preponder-
ance of the evidence. See 20 U.S.C.A. § 1415(i)(2)(B). Although the
federal action is an independent civil action and not an appeal of the
state administrative proceeding, see Kirkpatrick v. Lenoir County Bd.
of Educ., 216 F.3d 380, 384 (4th Cir. 2000), the Supreme Court has
made it clear that the district court must give "due weight" to the state
administrative proceeding. See Rowley, 458 U.S. at 206; Doyle v.
Arlington County Sch. Bd., 953 F.2d 100, 103 (4th Cir. 1991)
("Generally, in reviewing state administrative decisions in IDEA
cases, courts are required to make an independent decision based on
a preponderance of the evidence, while giving due weight to state
administrative proceedings.").
We have concluded that the "due weight" to be given the state
administrative proceeding requires that
findings of fact by the hearing officers in [IDEA] cases
. . . be considered prima facie correct, akin to the traditional
sense of permitting a result to be based on such fact-finding,
but not requiring it.
We are further of opinion that when fact-findings are reg-
ularly made and entitled to prima facie correctness, the dis-
trict court, if it is not going to follow them, is required to
explain why it does not. . . . After giving the administrative
fact-findings such due weight, if any, the district court then
is free to decide the case on the preponderance of the evi-
dence, as required by the statute.
Doyle, 953 F.2d at 105 (citations omitted). In our view, the district
court misapplied these standards.
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Doyle makes it clear that factual findings made during the state
administrative proceeding are entitled to a presumption of correct-
ness, so long as the findings were "regularly made." Id. Factual find-
ings are not "regularly made" if they are reached through a process
that is "far from the accepted norm of a fact-finding process." Id. at
104. For example, in Doyle we concluded that a state administrative
appeals officer (reviewing the findings of the local hearing officer
who conducted the hearing) violated the accepted norms of the fact-
finding process by rejecting, on review of a cold record, the testimony
of a witness that the hearing officer had found credible, simply
because the reviewing officer believed that the witness was acting as
an advocate:
[T]he reviewing officer concluded that Dr. Solomon saw her
role as that of an advocate and found her testimony not to
be credible. While it is true that by statute and regulation the
reviewing officer is required to make an independent deci-
sion, we are of opinion that his reason for discrediting a wit-
ness who he had not seen or heard testify, in the face of the
crediting of that same witness by a hearing officer who had
seen and heard the witness testify, is so far from the
accepted norm of a fact-finding process designed to discover
truth that we think the due weight which should be accorded
the decision of the reviewing fact-finding officer depending
on that credibility decision is none.
Id.
In this case, the district court concluded that the hearing officer
failed to consider and credit the testimony of the School Board’s wit-
nesses, which the district court viewed as a sufficient departure from
the fact-finding norm under Doyle that the hearing officer’s findings
should be accorded no weight at all. See District Court Opinion, J.A.
1688 ("[T]he Hearing Officer’s decision was presumably based on the
testimony of the witnesses on both sides. A review of the Hearing
Officer’s decision, however, suggests that the decision did not ade-
quately, if at all, consider the testimony of the School Board’s three
expert witnesses. . . ."); J.A. 1689 ("But instead of crediting the testi-
mony of these . . . witnesses, the Hearing Officer appears to have
relied on and based his decision on the testimony of the [parents’] two
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experts. . . ."); J.A. 1690 ("In making his decision, the Hearing Officer
placed too much, if not exclusive, reliance on the [parents’] experts’
testimony and failed to give appropriate consideration to the basis for
each witness’ opinion."). In our view, what the district court identified
as failings on the part of the hearing officer are not failings at all,
much less failings of a degree that would warrant a wholesale rejec-
tion of the hearings officer’s findings.
The hearing officer’s opinion was thorough, with many citations
and references to the testimony of the School Board’s witnesses. It is
thus clear that the hearing officer did give careful consideration to the
opinions of the School Board’s witnesses. As to what the hearing offi-
cer believed was the critical issue—whether Z.P. then had the ability
to access Twin Hickory’s curriculum—the hearing officer was per-
suaded by the testimony of the parents’ witnesses.
The hearing officer noted Z.P.’s strong propensity to engage in
self-stimulatory behavior if left on his own, a conclusion that was
supported by the testimony of the parents’ witnesses and by that of
a School Board witness.3 The hearing officer concluded that while
some autistic children can learn while engaging in self-stimulatory
behavior, Z.P.’s "stimming" was so severe that he could not learn
while engaging in self-stimulatory behavior. The hearing officer
noted that the classroom at Twin Hickory, which was larger than
Z.P.’s private room at the Faison School, would be too stimulating
and too distracting to Z.P., another conclusion supported by the testi-
mony of a School Board witness.4 The hearing officer also determined
3Lynn Blachman is a speech pathologist for Henrico County who eval-
uated Z.P. She testified that Z.P. engaged in self-stimulatory behavior
when not engaged in one-on-one instruction. See J.A. 194.
4Carolyn Stone, a Henrico County occupational therapist, provided
therapy to Z.P. during the 2001-02 school year, when he was attending
the Faison School. She also evaluated Z.P. in conjunction with the
School Board’s preparation of the 2002-03 IEP. One of her evaluations
of Z.P. was conducted at an elementary school, in a "regular sized class-
room" similar to the Twin Hickory classroom. She was unable to com-
plete the evaluation because "[t]he testing room was clearly too large and
too stimulating to afford [Z.P.] the opportunity to attend to testing mate-
rials." J.A. 94.
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that the class size at Twin Hickory would preclude Z.P. from receiv-
ing the amount of direct, one-on-one instruction that would be neces-
sary to keep him focused and to stop him from engaging in self-
stimulatory behavior. These facts, all of which find support in the
record, led the hearing officer to conclude that Z.P. would not be able
to receive any educational benefit from the Twin Hickory program.
The evidence presented by the School Board on these points was
simply not of the nature or quality that would require the hearing offi-
cer to accept it over that of the parents’ witnesses. The School Board
presented evidence that the Twin Hickory staff was able to suffi-
ciently control the behavior of their students, and that other students
suffering from severe autism have benefitted from the Twin Hickory
curriculum. The Twin Hickory teacher testified that no particular
skills are required of a new student, because she and her assistants
teach whatever skills are missing. While this evidence was relevant,
it is not so compelling that we can conclude, as the district court
apparently did, that the hearing officer was required to accept it. The
hearing officer recognized that other students had benefitted from the
Twin Hickory program, but simply concluded that Z.P.’s problems
were so severe that he would not be able to benefit.5
To be sure, the hearing officer did not specifically state that he
found the testimony of the School Board’s witnesses to be less credi-
ble on these points. Doyle, however requires the district court to
explain its reasons for rejecting the findings of the hearing officer; it
does not require the hearing officer to explain in detail its reasons for
5The School District complains that the hearing officer ignored the fact
that an aide was hired for Z.P. after the IEP was written. We believe that
the hearing officer properly focused on what was actually contained in
the written IEP when determining the appropriateness of that IEP. See
Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755, 768 (6th
Cir. 2001) ("The district court erred in relying on the [hearing officer’s]
finding that [the school district] had the capacity to offer [the child]
appropriate placement. The district court should have limited its assess-
ment to the terms of the draft IEP document itself. Although there was
evidence in the record indicating what could have been provided at [the
proposed school], only those services identified or described in the draft
IEP should have been considered in evaluating the appropriateness of the
program offered.").
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accepting the testimony of one witness over that of another. In any
event, the hearing officer’s analysis and explanation for the basis of
his ruling make it clear that he was not persuaded, and why he was
not persuaded by the School Board’s evidence. We have held that
credibility determinations implicit in a hearing officer’s decision are
as entitled to deference under Doyle as explicit findings. See A.B. ex
rel. D.B. v. Lawson, 354 F.3d 315, 327-28 (4th Cir. 2004) (reversing
district court’s opinion which rejected decision of hearing officer and
noting that "the district court disregarded the ALJ’s resolution of con-
flicting expert testimony. The ALJ carefully considered the views of
[the student’s] experts . . . , implicitly finding them unconvincing
while crediting the contrary views of [the School District’s] experts").
Thus, contrary to the district court’s conclusion, the mere fact that the
hearing officer accepted the evidence of the parents over that of the
School Board is not a reason to reject the hearing officer’s findings.
We recognize, of course, that at all levels of an IDEA proceeding,
the opinions of the professional educators are entitled to respect. See
Rowley, 458 U.S. at 206 ("[T]he provision that a reviewing court base
its decision on the ‘preponderance of the evidence’ is by no means an
invitation to the courts to substitute their own notions of sound educa-
tional policy for those of the school authorities which they review.").
The respect and deference that must be accorded to those professional
opinions, however, does not give a district court license to ignore the
requirement of Rowley and Doyle that the findings of the administra-
tive proceeding must be given due weight:
The district court . . . viewed the decision of the state hear-
ing officers, reviewing the decision of the School Board pur-
suant to federal and state statutes and regulations, as the
decision to which deference was due [under Rowley] . . . .
The district court properly gave due weight to the results of
the state administrative proceedings. To give deference only
to the decision of the School Board would render meaning-
less the entire process of administrative review.
School Bd. v. Malone, 762 F.2d 1210, 1217 (4th Cir. 1985) (emphasis
added).
Nor does the required deference to the opinions of the professional
educators somehow relieve the hearing officer or the district court of
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the obligation to determine as a factual matter whether a given IEP
is appropriate. That is, the fact-finder is not required to conclude that
an IEP is appropriate simply because a teacher or other professional
testifies that the IEP is appropriate. The parents presented evidence
(outlined above) tending to show that, because of the nature and
severity of Z.P.’s problems, the IEP would not provide Z.P. with a
educational benefit. The IDEA gives parents the right to challenge the
appropriateness of a proposed IEP, and courts hearing IDEA chal-
lenges are required to determine independently whether a proposed
IEP is "reasonably calculated to enable the child to receive educa-
tional benefits." Rowley, 458 U.S. at 207; see Tice ex rel. Tice v. Bote-
tourt County Sch. Bd., 908 F.2d 1200, 1207 (4th Cir. 1990) ("Neither
the district court nor this court should disturb an IEP simply because
we disagree with its content. Rather, we must defer to educators’
decisions as long as an IEP provided the child the basic floor of
opportunity that access to special education and related services pro-
vides." (emphasis added, internal quotation marks omitted)). To con-
clude that the hearing officer erred simply because he did not accept
the testimony of the School Board’s witnesses, an argument that the
School Board comes very close to making, would render meaningless
the due process rights guaranteed to parents by the IDEA. See
Malone, 762 F.2d at 1217.
The School Board, however, contends that hearing officer’s find-
ings are entitled to no deference because he failed to consider the
bases for the witnesses’ opinions. The School Board characterizes this
as "a major fact-finding error because there was a wide disparity in
the witnesses’ knowledge of the proposed program." Brief of Appel-
lees at 17. We agree with the School Board that the parents’ witnesses
had limited knowledge about the general success of the Twin Hickory
program. And if the hearing officer had relied on the parents’ wit-
nesses to conclude that the Twin Hickory program was a bad one,
then we might agree with the School Board’s position that the hearing
officer’s findings do not warrant any deference. The hearing officer,
however, accepted and acknowledged that students had benefitted
from the Twin Hickory program. See J.A. 494 ("I take it for granted
that students have succeeded at both institutions. . . . I think there are
a lot of students who succeed in both programs.").6 The hearing offi-
6The School Board contends the hearing officer gave short shrift to its
evidence of the general success of its Twin Hickory program. We agree
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cer relied on the testimony of the parents’ witnesses to conclude that
Z.P.’s unique problems made the Twin Hickory program inappropri-
ate for Z.P.; the hearing officer did not conclude that the Twin Hick-
ory program was inappropriate for all autistic students. Given the
basis for the hearing officer’s conclusion that the IEP did not provide
Z.P. with a free appropriate education, it was entirely proper for the
hearing officer to rely primarily on the testimony of the parents’ wit-
nesses.
To the extent that the district court concluded that the hearing offi-
cer’s findings were not entitled to deference because the decision was
premised on the hearing officer’s preference for the ABA methodol-
ogy used by the Faison school over the TEACCH methodology used
at Twin Hickory, we again disagree. Neither a state administrative
hearing officer nor a reviewing court may reject an otherwise appro-
priate IEP because of dissatisfaction with the educational methodol-
ogy proposed in the IEP. If an IEP is "reasonably calculated to enable
the child to receive educational benefits," Rowley, 458 U.S. at 207,
the hearing officer cannot reject it because the officer believes that a
different methodology would be better for the child. See id. at 208
("[O]nce a court determines that the requirements of the Act have
been met, questions of methodology are for resolution by the
States."); MM, 303 F.3d at 526 ("The IDEA does not . . . require a
school district to provide a disabled child with the best possible edu-
with the School Board that it was entitled to consider its past successes
with autistic students when formulating the IEP. But even assuming that
the hearing officer should have permitted the School Board to present
more evidence of its past successes, any error in this regard would be
harmless and would not warrant a wholesale disregard of the hearing
officer’s findings, given the officer’s explicit acknowledgment that stu-
dents have succeeded under the School Board’s TEACCH curriculum.
Moreover, as the hearing officer concluded, the ultimate inquiry in an
IDEA case is whether the IEP is appropriate for the individual student.
Past success of the proposed program is certainly relevant to that inquiry,
but it is not dispositive. That is, a hearing officer (or reviewing court)
cannot conclude that a proposed IEP is appropriate for a given student
simply because similar IEPs were appropriate for other students. To do
so would eliminate the individualized inquiry that is at the heart of the
IDEA.
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cation."). As we have explained above, the hearing officer concluded
that the School Board’s IEP was not appropriate and did not provide
Z.P. with a FAPE because Z.P.’s problems were so severe that they
would have precluded him from accessing the curriculum that would
have been provided at Twin Hickory. If the School Board’s IEP were
appropriate, then it would have been impermissible for the hearing
officer to reject it simply because he thought the Faison program
would be better for Z.P. But that is not what the hearing officer did.
The hearing officer concluded, as a factual matter, that the School
Board’s IEP was not appropriate for Z.P., but that the Faison program
was appropriate. Thus, the hearing officer did not impermissibly
impose on the School Board what he believed was a better method for
teaching Z.P.
Accordingly, for the reasons discussed above, we conclude that the
hearing officer’s factual findings were "regularly made." Doyle, 953
F.2d at 105. The district court, therefore, erred by failing to treat the
hearing officer’s findings as presumptively correct. See id.
B.
Because we conclude that the district court erred by failing to give
appropriate deference to the findings of the hearing officer, we must
now determine what effect this error has on our disposition of this
appeal.
Whether an IEP is appropriate and thus sufficient to discharge a
school board’s obligations under the IDEA is a question of fact, see
DiBuo ex rel. DiBuo v. Board of Educ., 309 F.3d 184, 188 n.8 (4th
Cir. 2002); see also Doyle, 953 F.2d at 106, reviewed under a clear
error standard. See Carter ex rel. Carter v. Florence County Sch. Dist.
Four, 950 F.2d 156, 160 (4th Cir. 1991) (affirming district court’s
finding that IEP was not appropriate because district court’s conclu-
sion was not clearly erroneous), aff’d, 510 U.S. 7 (1993); Matthews
ex rel. Matthews v. Davis, 742 F.2d 825, 831 (4th Cir. 1984) (apply-
ing clear error standard to district court’s factual finding in IDEA
case). While the district court concluded that the School Board’s
2002-03 IEP was appropriate, that factual finding was the product of
the district court’s conclusion that the hearing officer’s factual find-
ings were not "regularly made" and thus entitled to no deference, con-
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clusions that we have rejected. The district court’s determination that
the IEP was appropriate is therefore not entitled to deference by this
court. Cf. Consolidation Coal Co. v. Local 1643, United Mine Work-
ers of Am., 48 F.3d 125, 128 (4th Cir. 1995)("[T]he clearly erroneous
rule does not protect findings made on the basis of the application of
incorrect legal standards." (internal quotation marks omitted)).7
7The district court’s order in this case is denominated as an order
granting summary judgment in favor of the School Board. Because sec-
tion 1415(i)(2)(B)(iii) of the IDEA requires the district court to "bas[e]
its decision on the preponderance of the evidence," the statute requires
the district court to independently make factual findings regarding the
appropriateness of the proposed IEP. See, e.g., Board of Educ. v. Illinois
Bd. of Educ., 41 F.3d 1162, 1166 (7th Cir. 1994) ("[A] district court must
independently determine whether the requirements of the Act have been
satisfied."). It therefore would seem that the court is entering judgment
after what amounts to a bench trial, whether the district court considered
new evidence or simply proceeded on the basis of an unsupplemented
administrative record. See Kirkpatrick v. Lenoir County Bd. of Educ.,
216 F.3d 380, 385 n.4 (4th Cir. 2000) ("Several courts also indicate that
the matter is before the court on cross-appeals or cross-motions for sum-
mary judgment despite the fact that there are clearly disputed issues of
material fact. As we conclude, IDEA actions are original civil actions
that should typically be disposed of by motions for judgment."); Beth B.
v. Van Clay, 282 F.3d 493, 496 n.2 (7th Cir. 2002) (noting that district
court’s disposition of IDEA case "is perhaps better described as judg-
ment on the record."). This understanding of the nature of IDEA pro-
ceedings before the district court is reflected in IDEA cases from this
court applying (sometimes implicitly) not a summary judgment standard
of review, but instead the clear error standard of review traditionally
applied to cases involving fact-finding by a district court. See Wagner ex
rel. Wagner v. Board of Educ., 335 F.3d 297, 301 (4th Cir. 2003) ("The
district court apparently believed that type of remedy insufficient in this
case. The impetus for the district court’s belief was its finding of fact that
Daniel’s then-current placement was unavailable because CSAAC could
not be counted upon to provide services. That finding was certainly not
clearly erroneous, and we affirm it on appeal." (citation omitted)); Carter
ex rel. Carter v. Florence County Sch. Dist. Four, 950 F.2d 156, 160 (4th
Cir. 1991) (affirming district court’s finding that IEP was not appropriate
because district court’s conclusion was not clearly erroneous), aff’d, 510
U.S. 7 (1993); Burke County Bd. of Educ. v. Denton ex rel. Denton, 895
F.2d 973, 980 (4th Cir. 1990) (applying clear error standard to district
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In some IDEA cases, this court has concluded that similar errors
required us to remand the case to the district court so that the court
could make findings based on a consideration of the evidence under
the correct legal standard. See, e.g., JH ex rel. JD v. Henrico County
Sch. Bd., 326 F.3d 560, 567-69 (4th Cir. 2003) (concluding that dis-
trict court and hearing officer applied incorrect legal standard when
determining whether extended school year services were necessary to
provide a FAPE and remanding for reconsideration under the correct
standard); Fort Bragg Dependent Sch., 343 F.3d at 309 (concluding
that the district court analyzed claim for compensatory education
under an incorrect standard and remanding for reconsideration);
Doyle, 953 F.2d at 105-06 (concluding that the district court failed to
give proper deference to the hearing officer’s factual findings that an
IEP was not appropriate and remanding for reconsideration under the
proper standard). But in other cases, this court has made a ruling on
the merits of the case without a remand. See, e.g., A.B., 354 F.3d at
330, 332 (concluding that the district court erred by failing to give
proper deference to the hearing officer’s findings and concluding,
without remanding for additional fact-finding by the district court,
that the proposed IEP was appropriate); Hartmann ex rel. Hartmann
v. Loudoun County Bd. of Educ., 118 F.3d 996, 1005 (4th Cir. 1997)
(concluding that district court failed to give proper deference to hear-
court’s factual finding in IDEA case); Matthews ex rel. Matthews v.
Davis, 742 F.2d 825, 831 (4th Cir. 1984) (applying clear error standard
to district court’s factual finding in IDEA case). We recognize that the
clear-error standard of review may be in some tension with the standard
set forth in certain recent cases from this court. See MM ex rel. DM v.
School Dist., 303 F.3d 523, 530-01 (4th Cir. 2002); see also A.B. ex rel.
D.B. v. Lawson, 354 F.3d 315, 324-25 (4th Cir. 2004); JH ex rel. JD v.
Henrico County Sch. Bd., 326 F.3d 560, 566 (4th Cir. 2003); G ex rel.
RG v. Fort Bragg Dependent Sch., 343 F.3d 295, 302-03 (4th Cir. 2003).
We need not, however, decide whether there is an actual (rather than
merely semantical) difference between the standards of review set forth
in MM and the clear-error cases, because any difference would not be
relevant to our disposition of this case. As we will explain infra, we
believe that a remand to the district court is required in this case, an
action that is consistent with a clear error standard of review and is not
precluded by the standard set forth in MM.
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ing officer’s findings and directing that parents’ challenge to hearing
officer’s decision be dismissed).
As we have indicated previously, we believe that the hearing offi-
cer’s factual findings are supported by evidence in the administrative
record and are entitled to deference under Rowley and Doyle. The
record in this case would therefore support a conclusion by the district
court that the 2002-03 IEP is inappropriate because it is not "reason-
ably calculated to enable the child to receive educational benefits."
Rowley, 458 U.S. at 207. At this juncture, however, we are not confi-
dent that such a conclusion would be compelled. See Doyle, 953 F.2d
at 105 ("[W]e think that findings of fact by the hearing officers in
cases such as these are entitled to be considered prima facie correct,
akin to the traditional sense of permitting a result to be based on such
fact-finding, but not requiring it."). Because the IDEA requires the
district court, while giving deference to the hearing officer’s decision,
to make an independent finding as to the appropriateness of the IEP,
we believe it is prudent in this case to remand so that the district court
can make the required findings under the proper legal standard. A
remand is also required because the district court, given its conclusion
that the IEP was appropriate, did not make any findings with regard
to the appropriateness of Z.P.’s placement at the Faison School, a fact
that is essential to the parents’ right to tuition reimbursement. See,
e.g., A.B., 354 F.3d at 320 ("When a state receiving IDEA funding
fails to provide a FAPE, the child’s parent may remove the child to
a private school and then seek tuition reimbursement from the state.
The parent may recover if (1) the proposed IEP was inadequate to
offer the child a FAPE and (2) the private education services obtained
by the parents were appropriate to the child’s needs." (citation omit-
ted)).
On remand, the district court shall reconsider the question of the
appropriateness of the School Board’s 2002-03 IEP, giving deference
to the hearing officer’s decision.8 If after according deference to the
8This inquiry shall include reconsideration, under the proper standard
of deference, of the hearing officer’s findings with regard to the need for
extended school year services and a behavioral intervention plan, as well
as the IEP’s failure to indicate how compliance with certain goals would
be measured.
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hearing officer’s decision the district court still concludes that the IEP
is appropriate, the district court must explain its decision, as required
by this court in Doyle. See Doyle, 953 F.2d at 105 ("[W]hen fact-
findings are regularly made and entitled to prima facie correctness,
the district court, if it is not going to follow them, is required to
explain why it does not."). And, as noted above, if the district court
concludes that the IEP is not appropriate, it must then determine
whether the Faison School’s program is appropriate. See A.B., 354
F.3d at 320.
III.
Because we conclude that the district court erred by failing to give
deference to the decision of the state hearing officer, we reverse the
district court’s order and we remand for reconsideration consistent
with the principles set forth in this opinion.
REVERSED AND REMANDED
WITH INSTRUCTIONS
GREGORY, Circuit Judge, dissenting:
The district court rightly held that the hearing officer’s findings
should not be followed because the hearing officer substituted his
own views on education policy — and those of Z.P. and his experts
— for the determinations of the local educators charged with formu-
lating an individualized education program ("IEP"). The majority’s
opinion unwittingly thwarts the purpose of the Individuals with Dis-
abilities Act ("IDEA") by supporting the hearing officer’s misapplica-
tion of the law. Thus, I respectfully dissent.
As the majority notes, Z.P. was diagnosed with autism at age two.
He was referred to a School Board child study committee approxi-
mately three months after he was diagnosed. "Prior to completion of
the child study committee evaluations, Z.P.’s parents enrolled him in
the Faison School program." J.A. 3. The School Board child study
committee identified Z.P. as developmentally delayed and determined
that he was eligible to receive special education and related services.
However, Z.P.’s parents never enrolled him in public school. They
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rejected the School Board’s IEPs for the 2001-02 and 2002-03 school
years.
It is undisputed that Z.P. is severely autistic. The School Board
asserts that it is prepared to meet Z.P. at his current level,1 as it does
with other severely autistic children, and provide him educational
benefit. As the majority recognizes, the School Board contends that
its program can educate a child who has "no particular skills" and that
the teacher in conjunction with "her assistants teach whatever skills
are missing." Ante at 13. However, Z.P.’s parents argue that without
one-on-one teacher-child education, Z.P. will receive no educational
benefit and will not progress.
After the due process hearing, the hearing officer found:
Given the number of other children, the requirement to work
independently, the natural distractions at Twin Hickory and
[Z.P.’s] lack of communication skills, social behavior,
inability to stay on task for more than a few minutes, his
fear of other children and his severe propensity to self stim-
ulate and his inability to learn when self stimulating, [Z.P.’s]
ability to access the curriculum offered at Twin Hickory
would be so impaired as to deny him educational benefit.
J.A. 12. However, neither the parents’ expert witnesses nor the hear-
ing officer were able to establish in the record that Z.P.’s autism is
more severe or significantly different than other children that have
received educational benefit at Twin Hickory.
According to the hearing officer, Dr. Carlson agreed that the more
severe the autism, the more intense the service should be. To address
intensity, the School Board offered Z.P. both morning and afternoon
instruction.2 Nevertheless, the hearing officer found that this was not
enough, stating:
1The School Board does not dispute that Z.P., if left alone, engages in
self-stimulatory behavior and that while stimming he cannot learn.
2The hearing officer infers from the fact that Z.P. was offered services
for both sessions that he must be uniquely severely autistic. J.A. at 12.
His inference is unsubstantiated.
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If Dara Butler had only one autistic child to teach she may
choose to employ TEACCH3 or the ABA methodology
depending on that child’s needs. The child given that level
of intense instruction may very well respond to either
method. The IEP did not indicate that Z.P. was going to get
this type of intense personal supervision and accordingly,
given his many problems and defects he would not be able
to benefit from the program at Twin Hickory.
J.A. 13. However, what the hearing officer describes would not be
using the TEACCH method. The TEACCH method involves a great
deal of visual stimulation, considerable work on individual skills, and
extensive group instruction. Thus, what the hearing officer was actu-
ally concluding was that without one-on-one instruction, like the
ABA method primarily used at Faison, Z.P. can not receive educa-
tional benefit. His conclusion is a methodological one and the record
does not support it. There is no evidence in the record that the
TEACCH method, as employed by Twin Hickory, does not provide
educational benefit to children as severely autistic as Z.P. The hearing
officer fails to recognize this fact, but instead bases his decision on
the testimony from one of the parents’ experts, Dr. Carlson,4 and his
own limited observations. In so doing, he fails to give the appropriate
deference required to the School Board witnesses as professional educa-
tors.5 See MM v. Sch. Dist., 303 F.3d 523, 533 (4th Cir. 2002). In
MM, we noted:
We have always been, and we should continue to be, reluc-
tant to second-guess professional educators. As we observed
in Tice v. Botetourt County School Board, "once a procedur-
ally proper IEP has been formulated, a reviewing court
should be reluctant indeed to second-guess the judgment of
3TEACCH is an acronym for the Treatment and Education of Autistic
and Communication Handicapped Children, which is a Public Health
Program developed in North Carolina.
4Dr. Carlson had a limited base of knowledge about the program at
Twin Hickory; thus his ability to opine about the educational benefit Z.P.
was likely to gain was also limited.
5All of the School Board’s witnesses testified that Z.P. would receive
educational benefit at Twin Hickory.
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education professionals." Indeed, we should not "disturb an
IEP simply because we disagree with its content," and we
are obliged to "defer to educators’ decisions as long as an
IEP provided the child the basic floor of opportunity that
access to special education and related services provides."
MM, at 532 (internal citations omitted).
Further, it is the parents’ burden to prove that the IEP developed
by the public school is inappropriate and denies the student a FAPE.
Weast v. Schaffer ex rel. Schaffer, 377 F.3d 449, 456 (4th Cir. 2004)
(holding that "parents who challenge an IEP have the burden of proof
in the administrative hearing"). They must prove this against an
appropriate amount of deference given to the local educators by the
hearing officer. Plaintiffs must also carry that burden in the district
court. Bd. of Educ. v. I.S., 325 F. Supp.2d 565 at 578 (D. Md. 2004)
("As the party challenging the administrative findings, Plaintiffs bear
the burden of proof of establishing a violation of the IDEA.") (citing
Barnett v. Fairfax County Sch. Bd., 927 F.2d 146, 152 (4th Cir. 1991),
cert. denied, 502 U.S. 859 (1991)). We also held in Barnett:
Congress chose to leave the section of educational policy
and methods where they traditionally have resided — with
state and local school officials. In addition, Congress’s goal
was to bring handicapped children into the public school
system and to provide them with an education tailored to
meet their particular needs . . . . Ultimately, the Act man-
dates an education for each handicapped child that is
responsive to his or her needs, but leaves the substance and
the details of that education to state and local school offi-
cials.
927 F.2d at 151-152 (emphasis added and citations omitted).
Moreover, the Supreme Court held in Board of Educ. of the Hen-
drick Hudson Cent. Sch. Dist. v. Rowley:
The primary responsibility for formulating the education to
be accorded a handicapped child, and for choosing the edu-
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cational method most suitable to the child’s needs, was left
by the Act to state and local educational agencies in cooper-
ation with the parents or guardian of the child. The Act
expressly charges States with the responsibility of "acquir-
ing and disseminating to teachers and administrators of pro-
grams for handicapped children significant information
derived from educational research, demonstration, and simi-
lar projects, and [of] adopting, where appropriate, promising
educational practices and materials." § 1413(a)(3).
458 U.S. 176, 207 (1982).
Because the hearing officer did not give deference to the local edu-
cators and did not consider as evidence the School Board’s ability to
provide educational benefit to severely autistic children at Twin Hick-
ory, the professional judgment of the local educators was undermined,
which is contrary to Congressional intent.6
Further, the hearing officer does not explain why the public school
professional educators’ testimonies do not deserve any deference.
Even though the majority recognizes that the School Board’s wit-
nesses teach severely autistic children at Twin Hickory, that these
professionals have also tested Z.P., and that they have testified that
their program is appropriate and will benefit him, the majority still
concludes that the hearing officer need not give the professional edu-
cators deference or explain why he is dismissing their opinions. Ante
at 13-14.
6It is apparent from the transcript of the hearing, that the hearing offi-
cer did not think that the School Board’s experience with other severely
autistic children was relevant. The hearing officer states, "I don’t think
that this witness can say or anybody can draw a conclusion that if one
student succeeded here or over here that that necessarily means that
[Z.P.] is going to succeed anywhere. So I think the whole issue of
whether or not other students have succeeded is immaterial." J.A. 494.
This is problematic since Z.P. has only been at Faison, thus Twin Hicko-
ry’s experience with other similarly severely autistic children is the only,
as well as quite compelling, evidence that the School Board has to show
that its program can provide educational benefit to Z.P.
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The majority and the hearing officer treat the parents’ experts, who
are not local educators, as if they are on par with the School Board’s
experts, who are local educators. That is simply not appropriate or
consistent with IDEA case law. Hartmann by Hartmann v. Loudoun
County Bd. of Educ., 118 F.3d 996, 1000 (4th Cir. 1997) ("Absent
some statutory infraction, the task of education belongs to the educa-
tors who have been charged by society with that critical task.");
Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1292 (11th
Cir. 2001) ("[G]reat deference must be paid to the educators who
develop the IEP."); Wagner v. Bd. of Educ., 340 F. Supp. 2d 603, 611
(D. Md. 2004) (noting that the "court owes generous deference (as did
the ALJ) to the educators on Daniel’s IEP Team"). If the hearing offi-
cer is not required to explain how he arrived at his opinion and why
he did not give deference to the professional local educators, espe-
cially when he finds against the School Board, then the required def-
erence that is due to professional local educators would be meaningless.7
Here, by not affording the School Board the appropriate deference the
administrative findings were not made in a regular manner. Thus, they
should not be considered prima facie correct and are not entitled to
due weight by the district court or this court.
The hearing officer in this case applied the incorrect standard for
determining whether the School Board had proposed an appropriate
IEP for Z.P. He stated that "[i]t is difficult for this Hearing Officer
to understand how the less intense program used at Twin Hickory
would result in more progress." J.A. 14. The hearing officer miscon-
strues what is required of an IEP under the IDEA. The IEP is not
required to give more educational progress to a child than his private
placement in order to be appropriate. The Supreme Court has said that
a student is only entitled to some educational benefit; the benefit need
not be maximized to be adequate. See Rowley, 458 U.S. 176, 200-01
("[T]o require . . . the furnishing of every special service necessary
7The majority finds that the hearing officer has no duty to "explain in
detail its reasons for accepting the testimony of one witness over that of
another." Ante at 13-14. Yet there is considerable authority that due pro-
cess of law requires that the nonjudicial decision maker — the agency
or its hearing officer as distinct from a judge or a jury — "should state
the reasons for his determination and indicate the evidence he relied on."
Goldberg v. Kelly, 397 U.S. 254, 271 (1970).
26 COUNTY SCHOOL BOARD OF HENRICO COUNTY v. Z. P.

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to maximize each handicapped child’s potential is . . . further than
Congress intended to go."). With this as the IDEA standard and using
the proper deference to the public educators, it is difficult to under-
stand how the hearing officer found, based on a preponderance of the
evidence standard, that Z.P. was denied a FAPE.
Here, the hearing officer relied on little to no empirical data to sup-
port his conclusion that Z.P.’s autism was so severe that he would not
benefit from the Twin Hickory program and the IEP the School Board
developed. The hearing officer also did not give the appropriate defer-
ence to the testimony of professional local educators like Ms. Butler,8
the teacher who would have actually taught Z.P. at Twin Hickory,
who testified that she had had similarly severely autistic children in
her class before and that they had received significant education bene-
fit.
The majority concludes that the district court found that the hearing
officer’s opinion was due no deference because he did "not ade-
quately, if at all, consider the testimony of" Mrs. Stone, Mrs. Blach-
man, or Dr. Driver, three of the School Board’s witnesses. 285 F.
Supp. 2d 701, 706 (E.D. Va. 2003). That conclusion misses the mark.
In sum, what the district court correctly determined was that the hear-
ing officers’s opinion was not entitled to presumptive validity because
the hearing officer did not make his decision in a regular manner or
with evidentiary support because he did not give the local educators
the adequate deference required. For the reasons stated above, I agree.
Therefore, I would affirm the decision of the district court.
8Ms. Butler is a trained and certified special education educator, with
three years experience teaching autistic children. J.A. 218-19.
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