Edwin Burilovich v. BOARD OF EDUCATION OF THE LINCOLN CONSOLIDATED SCHOOLS; RON GREINER, individually

20 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187
Because plaintiffs have failed to show that the IEP is
inappropriate, they are not entitled to reimbursement for the
costs of B.J.’s DTT program. See School Comm. of
Burlington v. Department of Educ., 471 U.S. 359, 374 (1985).
Furthermore, because B.J. was offered a FAPE, the district
court was correct in dismissing the remaining claims.
III.
For the foregoing reasons, the judgment of the district court
is affirmed.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0119P (6th Cir.)
File Name: 00a0119p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
EDWIN BURILOVICH ; LINDA
BURILOVICH , as next friends
on behalf of their son, Bradley
Burilovich,
Plaintiffs-Appellants,
v.
BOARD OF EDUCATION OF THE
LINCOLN C ONSOLIDATED
S CHOOLS; R ON GREINER,
individually,
Defendants-Appellees.
;>

1
No. 98-2187
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 97-72191—Bernard A. Friedman, District Judge.
Argued: November 4, 1999
Decided and Filed: April 4, 2000
Before: KEITH, NORRIS, and CLAY, Circuit Judges.

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2 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187
_________________
COUNSEL
ARGUED: Richard J. Landau, DYKEMA GOSSETT, Ann
Arbor, Michigan, for Appellants. Michael A. Eschelbach,
THRUN, MAATSCH & NORDBERG, Lansing, Michigan,
for Appellees. ON BRIEF: Richard J. Landau, DYKEMA
GOSSETT, Ann Arbor, Michigan, for Appellants. Michael
A. Eschelbach, Timothy R. Winship, THRUN, MAATSCH
& NORDBERG, Lansing, Michigan, for Appellees.
_________________
OPINION
_________________
ALAN E. NORRIS, Circuit Judge. Plaintiffs Edwin
Burilovich and Dr. Linda Burilovich (“plaintiffs”), acting on
behalf of their autistic son Bradley (“B.J.”), sued the Board of
Education of the Lincoln Consolidated Schools and its special
education director (“defendants”) under the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et.
seq. Plaintiffs challenge the district court’s grant of summary
judgment for defendants, maintaining that a proposal to place
B.J. in a mainstream kindergarten violated procedural and
substantive provisions of the IDEA. For the following
reasons, we affirm the judgment of the district court.
I.
B.J. was born on November 15, 1990. At an early age, his
parents noticed that his language skills were significantly
delayed. When he was three, plaintiffs sought assistance from
their local school district, Lincoln Consolidated Schools. B.J.
was evaluated by a Multidisciplinary Evaluation Team
(“MET”) at Willow Run Community Schools, which was
providing Preprimary Impaired (“PPI”) services for Lincoln.
The MET generated an Individualized Education Program
(“IEP”), providing B.J. with nonclassroom PPI services, along
with speech and language therapy.
No. 98-2187 Burilovich, et al. v. Bd. of Educ., et al. 19
for B.J. Dr. Burilovich felt that when B.J. had less DTT, he
tended to be less social, to engage in less speech, and to
increase his self-stimulation. She felt he was very different in
school, and that he would be totally overwhelmed in a
mainstream class. Dr. Meinhold testified that B.J. would not
benefit from mainstream kindergarten, even with a one-to-one
paraprofessional. Dr. Holmes also indicated that DTT would
be better than kindergarten for B.J., noting that B.J. would not
benefit from being with peers until he developed better
communication skills.
The district’s witnesses, on the other hand, saw problems
with DTT. Dr. Mesibov indicated that the DTT proposal
emphasized B.J.’s deficits, not his strengths, and that isolating
B.J. would only make his social relationships worse. Mr.
Greiner stated that the staff never wanted the DTT proposal
because they thought it would be bad for B.J. Some of the
concerns expressed over the proposal were that DTT, unlike
the school program, did not account for a natural
environment, peer reinforcement, or independence. Staff
members also had problems with DTT because it appeared to
be a package deal, without individualization for B.J. Even
Dr. Meinhold acknowledged that B.J. would learn in
kindergarten, just not in his area of weakness.
The district court reviewed the testimony and concluded
that the school’s proposal was the only one tailored to B.J.’s
needs, holding that the SHO’s findings were well supported
by the evidence. Given the differing opinions on both sides
as to the best program for B.J. and the reasonable bases in the
record for the opinions, we emphasize that courts should not
“substitute their own notions of sound educational policy for
those of the school authorities which they review.” Rowley,
458 U.S. at 206. Giving due weight to the SHO’s decision,
we conclude that the IEP was designed to allow B.J. to
achieve his maximum potential. Cf. Renner, 185 F.3d at 644-
46 (finding IEP substantively valid under similar
circumstances).

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18 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187
will be defective if it fails specifically to address regression,
nor do plaintiffs posit any argument that would persuade this
court that we should so hold.
Plaintiffs further maintain that the district court improperly
resolved a material question of fact by deferring to the SHO’s
decision perceived by the court as discrediting plaintiffs’
expert, Dr. Meinhold. Review of the SHO’s opinion reveals
that, while the SHO said that he discounted (not
“discredited”) Dr. Meinhold’s testimony, the SHO actually
did consider her proposed DTT package when assessing
whether B.J.’s unique needs were met. There is no issue of
material fact because the SHO’s findings did take into
account Dr. Meinhold’s views. After independent review of
the record, and giving due weight to the SHO’s decision, we
agree with the SHO’s conclusion.
7. Whether the IEP was Designed to Allow B.J. to Attain
his Maximum Potential
Plaintiffs maintain that there was conflicting testimony
addressing the question of whether the IEP would allow B.J.
to attain his “maximum potential.” Plaintiffs suggest that the
only expert opinion based upon a professional, individual
assessment of B.J. showed that he needs an intensive program
of individualized, one-to-one instruction. Plaintiffs note that
defendants’ expert, Dr. Gary Mesibov, had never met B.J.,
while plaintiffs’ experts, Drs. Meinhold and Holmes, had met
and observed B.J. Plaintiffs also indicate that other defense
witnesses included school district staff, some of whom had
never met B.J. or who had only met him once. Plaintiffs
reiterate their assertion that the IEP was based on the
availability of resources and experience of school personnel,
not B.J.’s needs. Plaintiffs also cite several cases approving
of DTT. Finally, plaintiffs maintain that the IDEA’s goal that
a student be in the least restrictive environment did not weigh
in favor of the district’s IEP because B.J. was not ready for
the fully mainstreamed class suggested by the IEP.
Independent review of the record confirms that the parties
had widely differing views of the best method of education
No. 98-2187 Burilovich, et al. v. Bd. of Educ., et al. 3
On February 24, 1994, B.J. was evaluated by Dr. Luke Tsai
at the University of Michigan Adult/Child Psychiatric
Hospitals. Suzanne Boyer, B.J.’s teacher, was present for the
last part of the appointment. Dr. Tsai diagnosed B.J. as
autistic; Dr. Burilovich later hand-delivered a copy of Dr.
Tsai’s evaluation to Ms. Boyer. This evaluation was not
placed in B.J.’s school file.
Plaintiffs began researching educational approaches to
treating autism. They learned of an approach developed by
Dr. Ivar Lovaas, called discrete trial training (“DTT”). DTT
emphasizes heavy parental involvement, early intervention,
and treatment in the home and elsewhere in the community,
rather than in professional settings. Plaintiffs started a home-
based DTT program for B.J.
In June 1994, Dr. Burilovich wrote to Willow Run’s
Superintendent, Dr. Yomtoob, expressing her concerns about
the downsizing of the Willow Run infant-toddler program and
B.J.’s being given only three hours of instruction a week.
That letter also indicated that B.J. was autistic.
In September 1994, Lincoln notified B.J.’s parents that it
was transferring B.J. from the Willow Run program to the
Lincoln PPI program. On October 1, 1994, the parents
consulted with Dr. Patricia Meinhold, a psychology professor
at Western Michigan University, who concluded that B.J. was
an appropriate candidate for DTT and suggested the parents
request assistance from their school district. An IEP
Committee meeting (“IEPC”) was held with the school. The
resulting IEP placed B.J. in the district’s PPI program 2.5
hours a day, four days a week, with 40-80 minutes per week
of speech and language therapy. The parents requested that
part of B.J.’s school time be used for DTT, but the district did
not include DTT in the IEP. B.J.’s teacher Betsy McMillin
offered to, and did, provide DTT therapy for a half hour
before the school day began.
B.J.’s home program continued to develop. By
Thanksgiving he was receiving at least 20 hours per week of
DTT. The parents decided to reduce B.J.’s school

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4 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187
participation to two days a week following Christmas
vacation; his time spent on DTT increased to 20-25 hours a
week. According to plaintiffs, in the first half of 1995, B.J.
made progress with his language and imitative skills, but was
not involved in classroom activities. By the last half of 1995,
B.J. was averaging 25-30 hours of home-based DTT. On
November 28, 1995, Mr. Burilovich visited B.J.’s classroom
and made a videotape. The parents maintain that the behavior
on the videotape confirmed Dr. Burilovich’s concerns that
B.J.’s behavior in school was more regressed than at home.
On July 1, 1995, defendant Ronald Greiner became the
Director of Special Education for the Lincoln Consolidated
Schools. He began working with the Burilovich family in the
fall of 1995 and an IEPC for B.J. was held on December 1,
1995. On December 7, 1995, Mr. Greiner sent a letter to
plaintiffs memorializing conversations he had with them and
setting out the district’s perspective on an appropriate
program for B.J. The letter also indicated that the parents had
mentioned they were having some medical evaluations
completed addressing autism, and asked for access to that
information. In response, plaintiffs requested an independent
educational evaluation (“IEE”) by Dr. Meinhold. Plaintiffs
later provided Mr. Greiner with a copy of Dr. Tsai’s March
1994 evaluation. In January 1996, Mr. Greiner initiated an
evaluation of B.J. for autism. The evaluation included some
home observation by the school psychologist, school social
worker, and Mr. Greiner.
Another IEPC was scheduled for March 18, 1996. Before
that meeting, Dr. Meinhold submitted a report that included
a formal written program proposal for B.J. At the meeting,
Mr. Greiner proposed a program predominantly consisting of
DTT, accepting the goals and objectives developed by Dr.
Meinhold, and providing for staff training by Dr. Meinhold.
According to Mr. Greiner, he proposed the plan involving
DTT because he wanted to avoid conflict and a due process
hearing. The staff, however, did not support the proposal.
While most of the meeting was taped, the proposal was not
written in a formal IEP. The parties disagree over the reason
No. 98-2187 Burilovich, et al. v. Bd. of Educ., et al. 17
5Although plaintiffs characterized this issue as a procedural violation,
we view it as an alleged substantive violation because the requirement that
the IEP be designed to meet the child’s unique needs is derived from the
definition of “special education” in 20 U.S.C. § 1401(a)(16). See Dong,
197 F.3d at 802.
any other program.5 To support this allegation, plaintiffs
point to the testimony of Amy Stamps, the school
psychologist, who indicated that the school personnel was not
trained sufficiently to provide B.J. with DTT. Ms. Stamps’
testimony does not support plaintiffs’ assertion, however,
because the record indicates that she still had concerns about
DTT even when she assumed that personnel could be properly
trained.
The district court and the SHO correctly determined that
defendants’ program took B.J.’s unique needs into
consideration. As the district court pointed out, defendants’
program set goals for B.J. and created a detailed daily
schedule to address each of the goals with a program
including both group instruction and one-on-one therapy. In
contrast, the court noted that it did not see how the parents’
proposed “standard” 40 hours of DTT therapy “was tailored
to B.J.’s needs.” The court later stated that the “school’s
proposal is the only one which took into consideration B.J.’s
goals and abilities, and developed a plan specifically to
accommodate him.” After reviewing the record, and giving
due weight to the SHO’s opinion, we agree with the district
court that the IEP did take into account B.J.’s unique needs.
See Renner, 185 F.3d at 644 (determining that IEP addressed
child’s unique needs in case involving similar circumstances
to the present case).
Plaintiffs also suggest that the IEP did not address B.J.’s
unique needs because it did not mention B.J.’s home program
of DTT or his potential for regression. They rely on a case in
which a district court ruled against a change in placement due
to a risk of regression. See Delaware County Intermediate
Unit No. 25 v. Martin K, 831 F. Supp. 1206, 1229 (E.D. Pa.
1993). We do not read the case as saying that an IEP always

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16 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187
development for chronological age, as measured by more
than 1 developmental scale, which cannot be resolved by
medical or nutritional intervention. This definition shall
not preclude identification of a child through existing
criteria within R 340.1703 to R 340.1710 or R 340.1713
to R 340.1715.
Id.
The only case cited by plaintiffs to suggest a time limitation
is readily distinguishable. In Metropolitan Nashville &
Davidson County School System v. Guest, 900 F. Supp. 905
(M.D. Tenn. 1995), the court held that a school system had
violated its obligations under the IDEA to identify, locate, and
evaluate children needing special education by delaying two
months in identifying a disabled child and an additional four
months in properly evaluating him. The court emphasized
that while the Sixth Circuit has recognized that technical
defects do not result in a violation of the IDEA if there is no
substantive deprivation, “[s]ix months without appropriate
services, however, is one-sixth of a three-year-old’s life.” Id.
at 908. That case involved the initial identification and
evaluation of the child, not the reevaluation at issue with B.J.
Plaintiffs maintain that the delay in this case was not just a
technical defect, given the more intensive programming
available for autistic students. Yet plaintiffs do not suggest
how the delay could have caused a substantive problem with
B.J.’s IEP, since by the time the March and May IEPCs
occurred, B.J. had been certified as autistic. For these
reasons, plaintiffs have failed to explain the relevance of the
failure to recertify B.J. sooner, even if a time limitation was
applicable.
6. B.J.’s Unique Needs
Plaintiffs suggest that the IEP failed to take B.J.’s unique
needs into consideration, asserting that the district proposed
the IEP because its personnel had insufficient experience for
No. 98-2187 Burilovich, et al. v. Bd. of Educ., et al. 5
why there was no written document. Nonetheless, the
participants left with the understanding that Dr. Meinhold
would begin training the staff the next week. That training
session was later canceled, according to Mr. Greiner, because
of recent snow days.
After the meeting, Mr. Greiner realized that the staff did not
think DTT was a good program for B.J. Mr. Greiner met
privately with his staff on April 16 and 26, 1996 to discuss
DTT and develop a new proposal. A proposal was drafted
and sent to the parents, with goals similar to those proposed
by Dr. Meinhold, but without any DTT. Instead, the proposal
placed B.J. in a mainstream kindergarten class with one-to-
one support from a trained paraprofessional.
An IEPC was scheduled for May 17, 1996, to which Dr.
Meinhold was not invited. At the May IEPC, plaintiffs had
serious concerns about placing B.J. in a mainstream
kindergarten program without any DTT and discussed why
the proposal differed from the March proposal for B.J.
According to defendants, Mr. Greiner tried to explain the
rationale for the proposal, but the parents were not interested
in hearing details. Plaintiffs signed the IEPC, noting their
disagreement, on May 23, 1996.
Pursuant to the IDEA, the parents requested an impartial
due process hearing before a local hearing officer (“LHO”).
The LHO decided in favor of B.J.’s parents, finding that the
March 1996 oral proposal was an IEP that should be
implemented, and directing the district to reimburse the
parents for the expenses of providing DTT at home. Both
parties appealed aspects of the decision. The state hearing
review officer (“SHO”) reversed the LHO, finding that no IEP
had been created in March and the May IEP was valid. The
SHO determined that the May IEP was developed without
procedural or substantive violations and provided a free
appropriate public education (“FAPE”) designed to maximize
B.J.’s potential, in accordance with federal and state law. The
SHO also denied reimbursement to the parents.

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6 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187
Plaintiffs filed a complaint in district court appealing the
SHO’s determination and alleging violations of the IDEA, the
Rehabilitation Act of 1973, the Americans with Disabilities
Act, 42 U.S.C. § 1983, and the Michigan Handicappers’ Civil
Rights Act. Defendants filed a motion for summary judgment
addressing all counts of the complaint; plaintiffs filed a
motion for partial summary judgment addressing their IDEA
claim. The district court granted defendants’ motion and
denied plaintiffs’ motions for partial summary judgment and
for reconsideration. The court determined that the parents
had the burden of proof. Looking at specific issues raised, the
court first held that the timing of B.J.’s recertification as
autistic was acceptable. Second, the court determined that the
district had conducted a proper evaluation of B.J. and the
professionals involved were qualified. Third, the court found
that B.J.’s parents were sufficiently included in the IEPC
process. Fourth, the court found that the district’s proposal
was designed to address B.J.’s unique needs. Finally, after an
independent review of the evidence, the court agreed with the
SHO that the May IEP allowed B.J. to attain his maximum
potential. Because the school’s IEP was appropriate, the
court held that the parents were not entitled to reimbursement.
The court dismissed the remaining claims, holding that they
failed because the court had found in defendants’ favor as to
the IEP.
The district court apparently believed that the parties had
submitted the case for review of the administrative decision
on the record. Because plaintiffs dispute that the case was
submitted in that manner, we will treat the cause as having
been submitted on summary judgment.
II.
A. Standard of Review
The IDEA was designed to give children with disabilities
a free appropriate public education designed to meet their
unique needs. See 20 U.S.C.A. §§ 1401(a)(16), 1412 (West
1990) (current versions at 20 U.S.C.A. §§ 1401(25), 1412
(West 2000)); see also Renner v. Board of Educ., 185 F.3d
No. 98-2187 Burilovich, et al. v. Bd. of Educ., et al. 15
placement options were not considered. Both the LHO and
the SHO determined that the evaluation was adequate.
Plaintiffs have not made a persuasive argument otherwise,
especially considering the district had before it previous
evaluations of B.J. and Dr. Meinhold’s report. Nor have
plaintiffs shown how there is a genuine issue of material fact
as to whether B.J. needed a new evaluation before developing
his May 1996 IEP. As the district court pointed out, B.J. was
evaluated in early 1996 and “neither plaintiffs nor defendants
argue that a new evaluation would have yielded different
results.”
5. Timely Recertification of B.J.
Plaintiffs also maintain that defendants failed to timely
recertify B.J. by waiting until 1996 to certify him as autistic,
even though defendants knew he was diagnosed as autistic in
1994. Defendants dispute the date they learned of B.J.’s
autism diagnosis. Plaintiffs cite the portion of the IDEA that
sets out the requirements for an application for funds under
the IDEA. One of the requirements is that a state or local
educational agency “provide satisfactory assurance that
payments . . . will be used for excess costs directly
attributable to programs which . . . provide that all children
. . . who are handicapped . . . and are in need of special
education and related services will be identified, located, and
evaluated.” 20 U.S.C.A. § 1414(a)(1)(A) (West 1990)
(current version with differences in language at 20 U.S.C.A.
§ 1414 (West 2000)). This statutory provision does not
indicate specific time periods for such evaluation. There are
also no time requirements in the Michigan rule relied upon by
the district court. See Mich. Admin. Code r. 340.1711 (Supp.
1983). In relevant part, that rule states:
“Preprimary impaired” means a child through 5 years of
age whose primary impairment cannot be differentiated
through existing criteria within R 340.1703 to R
340.1710 or R 340.1713 to R 340.1715 and who
manifests an impairment in 1 or more areas of
development equal to or greater than ½ of the expected

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14 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187
4Plaintiffs assert that the change in placement was from B.J.’s home
DTT program to a fully mainstreamed school program. They cite no
support for their assertion that the home DTT was B.J.’s previous
placement. The record indicates that B.J. was subject to an IEP developed
in October, 1994, but B.J.’s parents unilaterally reduced his school
participation in 1995. On the other hand, defendants fail to explain why
the change from the 1994 IEP to the 1996 IEP would not be a significant
change in placement. But cf. Dong, 197 F.3d at 801 (noting SHO’s
finding that a change in placement from a half-day to a full-day is typical
when a child turns five years of age).
preponderance of the evidence” that the district’s staff
members were unqualified. The district court reviewed the
qualifications of the district’s staff and concluded that there
was “no evidence” they were unqualified. This holding
indicates that plaintiffs did not meet their summary judgment
burden of coming forward with evidence to create a genuine
issue as to qualifications. Plaintiffs have failed to suggest on
appeal how they would demonstrate a genuine issue.
Therefore, while the district court cited the wrong standard,
the holding was correct.
The parties also engage in a debate over whether
Michigan’s “maximum potential” standard requires the
district to hire “top-notch consultants” and to have personnel
knowledgeable about programs related to the needs of every
disabled child. Because plaintiffs have failed to raise a
genuine issue as to whether there were personnel
knowledgeable about DTT at the meeting and failed to argue
whether Dr. Meinhold would be a top-notch consultant, we
decline to address the argument.
4. Evaluation of B.J. Before IEP
Plaintiffs argue that the district did not conduct a required
comprehensive evaluation of B.J. before making a significant
change in his placement.4 Assuming that there was a
proposed significant change in placement, we must address
whether the evaluation in February 1996 was adequate.
Plaintiffs maintain it was inadequate because B.J. was
evaluated solely for the purpose of recertification and
No. 98-2187 Burilovich, et al. v. Bd. of Educ., et al. 7
635, 644 (6th Cir. 1999). There are two parts to a court’s
inquiry in suits brought under 20 U.S.C.A. § 1415(e)(2) (West
1990) (current version at 20 U.S.C.A. § 1415(i)(2) (West
2000)). First, the court determines whether the state has
complied with the procedures set forth in the IDEA. See
Board of Educ. v. Rowley, 458 U.S. 176, 206 (1982). Second,
the court assesses whether the IEP developed through the
act’s procedures is reasonably calculated to enable the child
to receive educational benefits. See id. at 206-07. Michigan
has added to this standard by requiring that an IEP be
designed to develop the “maximum potential” of a child.
Mich. Comp. Laws. Ann. §§ 380.170(a), 380.170(a),
380.1711(17)(a), 380.1751(1) (West 1997).
This court reviews both the procedural and substantive
matters under a standard of “modified de novo review.”
Renner, 185 F.3d at 641; see Metropolitan Bd. of Pub. Educ.
v. Guest, 193 F.3d 457, 463-64 (6th Cir. 1999). This standard
of review stems from the Supreme Court’s holding that courts
must give “due weight” to the state administrative
proceedings. Rowley, 458 U.S. at 206. In Rowley, the Court
looked at the procedural safeguards in the IDEA that
indicated that a court “shall receive the record [sic] of the
[state] administrative proceedings, shall hear additional
evidence at the request of a party, and, basing its decision on
the preponderance of the evidence, shall grant such relief as
the court determines is appropriate.” Id. at 205 (quoting 20
U.S.C.A. § 1415(e)(2) (West 1990)). The Court held that
“[t]he fact that § 1415(e) requires that the reviewing court
‘receive the records of the [state] administrative proceedings’
carries with it the implied requirement that due weight shall
be given to these proceedings.” Id. at 206.
This court has not elaborated on the meaning of “due
weight.” See, e.g., Doe v. Metropolitan Nashville Pub. Sch.,
133 F.3d 384, 386-87 (6th Cir.), cert. denied, 119 S. Ct. 47
(1998) (declining to resolve the meaning of due weight

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8 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187
1Other circuits have adopted a variety of interpretations of “due
weight.” See, e.g., Adams v. Oregon, 195 F.3d 1141, 1145 (9th Cir.
1999) (courts, in recognition of the expertise of the administrative agency,
must consider the findings carefully and endeavor to respond to the
hearing officer’s resolution of each material issue; after such
consideration the court is free to accept or reject the findings in part or in
whole, bestowing increased deference upon the hearing officer where her
findings are thorough and complete); Fort Zumwalt Sch. Dist. v. Clynes,
119 F.3d 607, 610 (8th Cir. 1997), cert. denied, 523 U.S. 137 (1998) (the
level of deference is less than required under the substantial evidence test,
but consideration should be given to the state hearing panel’s opportunity
to observe the demeanor of the witnesses); Teague Indep. Sch. Dist. v.
Todd L., 999 F.2d 127, 131 (5th Cir. 1993) (court’s review is “virtually
de novo”); Doyle v. Arlington County Sch. Bd., 953 F.2d 100, 105 (4th
Cir. 1992) (findings of fact are entitled to be considered prima facie
correct; the court must explain its reasons if it will not follow the
findings); Doe v. Alabama State Dep’t of Educ., 915 F.2d 651, 657 n.3
(11th Cir. 1990) (the extent of deference to be given the administrative
findings of fact is an issue left to the discretion of the district court; the
court must consider the administrative findings of fact, but is free to
accept or reject them).
definitively).1 We have held that a court cannot simply adopt
the state administrative findings without an independent re-
examination of the evidence. See id. We have also indicated
that the weight due will vary, depending on whether the court
is reviewing procedural or substantive matters and whether
educational expertise is essential to the administrative
findings.
With regard to procedural matters, a court should “strictly
review an IEP for procedural compliance,” although technical
deviations will not render an IEP invalid. Dong v. Board of
Educ., 197 F.3d 793, 800 (6th Cir. 1999); see also Doe v.
Defendant I, 898 F.2d 1186, 1190-91 (6th Cir. 1990). The
Supreme Court has emphasized the importance Congress
attached to the IDEA’s procedural safeguards:
[T]he congressional emphasis upon full participation of
concerned parties throughout the development of the IEP,
as well as the requirements that state and local plans be
submitted to the Secretary for approval, demonstrates the
legislative conviction that adequate compliance with the
No. 98-2187 Burilovich, et al. v. Bd. of Educ., et al. 13
views through letters and telephone conversations with
district staff. Cf. Dong, 197 F.3d at 802 (finding that parents
were afforded opportunity to participate, despite school
district’s failure to reconvene an IEPC after receiving a letter
from parents, when parents attended and expressed their
views at two IEPCs). Furthermore, plaintiffs have cited no
support for their implicit assertion that schools may never
discuss a child’s IEP, goals, objectives, or educational
methodology out of the presence of the parents. For these
reasons, plaintiffs have failed to demonstrate that they were
denied participation in the IEPC process.
3. Qualifications of District Staff
Plaintiffs also argue that the district failed to consult with
knowledgeable professionals regarding B.J.’s placement as
required by IDEA regulations. See 34 C.F.R.§ 300.533(a)(3)
(1996) (current version at 34 C.F.R § 300.533 (1999))
(requiring that the school district “[e]nsure that the placement
decision is made by a group of persons, including persons
knowledgeable about the child, the meaning of the evaluation
data, and the placement options”). Plaintiffs maintain that
because they preferred Lovaas-style DTT therapy, at least one
decision-maker should have been well-versed in that
treatment. More specifically, plaintiffs argue that the district
should have, but did not, consult Dr. Meinhold.
This court has rejected “the contention that [a school
district] must include an expert in the particular teaching
method preferred by the parents in order to satisfy the
requirement that the IEPC include persons knowledgeable
about ‘placement options.’” Dong, 197 F.3d at 801; see also
Renner, 185 F.3d at 644. Furthermore, the record indicates
that Marianne Miller, a teacher consultant for the district, had
experience using DTT. The district also had Dr. Meinhold’s
report and was able to consider it at the IEPC. See Dong, 197
F.3d at 801 (noting that the IEPC had a report from plaintiffs’
speech therapist, who utilized DTT).
Plaintiffs also point out that the district court used the
wrong standard when it found they had failed to prove “by a

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12 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187
1. Existence of March 1996 IEP
Plaintiffs argue that the district court erred in determining
that there never was a March 1996 IEP. They maintain that
despite the absence of a written document the evidence shows
that Mr. Greiner did not intend his proposal to be tentative
and planned to implement the IEP. Federal law and Michigan
regulation, however, both indicate that an IEP is a written
document. See 20 U.S.C.A. § 1401(a)(19) (West 1990)
(current version at 20 U.S.C.A. § 1401(11) (West 2000));
Mich. Admin. Code r. 340.1721e (Supp. 1995). Therefore,
plaintiffs cannot prevail on their claim that an IEP existed in
March when there was no written document until May.
Plaintiffs’ suggestion that the doctrine of promissory estoppel
should apply to Mr. Greiner’s statements in the March
meeting is equally unpersuasive. Congress created specific
procedures under the IDEA for developing an IEP, which
include a review process should a party such as plaintiffs be
dissatisfied with the eventual IEP or the delay in creating one.
2. April 16 & 26 Meetings
Next, plaintiffs argue that they were denied meaningful
parental participation in the IEPC process because they were
not invited to two meetings in April 1996. See 34 C.F.R.
§ 300.345, 34 C.F.R. § 300, app. C, No. 26 (1996) (current
versions at 34 C.F.R. § 300.345, 34 C.F.R. § 300, app. A, No.
5 (1999)). Defendants counter that the meetings on April 16
and 26 were staff meetings that plaintiffs were not entitled to
attend. The SHO and district court agreed with defendants’
characterization of the meetings and plaintiffs do little to
suggest that the meetings were in fact IEP meetings. Cf. 34
C.F.R. § 300, app. C, No. 55 (1996) (current version at 34
C.F.R. § 300, app. A, No. 32 (1999)) (indicating that district
staff may prepare information before meeting with parents).
Plaintiffs have not indicated how they were prevented from
participating in the development of the IEP. The parents
attended a December 1996 IEPC, strongly expressed their
views at the March 1996 IEPC, had the opportunity to
participate in the May 1996 IEPC, and also expressed their
No. 98-2187 Burilovich, et al. v. Bd. of Educ., et al. 9
procedures prescribed would in most cases assure much
if not all of what Congress wished in the way of
substantive content in an IEP.
Rowley, 458 U.S. at 206. Furthermore, “[i]f the procedural
requirements of the IDEA are met, greater deference is to be
afforded to the district’s placement decision.” Dong, 197
F.3d at 800.
As for substantive issues, “[t]he ‘preponderance of the
evidence’ language in the [IDEA] ‘is by no means an
invitation to the courts to substitute their own notions of
sound educational policy for those of the school authorities
which they review.’” See Thomas v. Cincinnati Bd. of Educ.,
918 F.2d 618, 624 (6th Cir. 1990) (quoting Rowley, 458 U.S.
at 206). The Supreme Court has pointed out that:
In assuring that the requirements of the Act have been
met, courts must be careful to avoid imposing their view
of preferable educational methods upon the States. The
primary responsibility for formulating the education to be
accorded a handicapped child, and for choosing the
educational method most suitable to the child’s needs,
was left by the Act to state and local educational agencies
in cooperation with the parents or guardian of the child.
Rowley, 458 U.S. at 207 (footnote omitted). Indeed, federal
courts are generalists with no expertise in the educational
needs of handicapped children and will benefit from the
factfinding of a state agency, which is presumed to have
expertise in the field. See Renner, 185 F.3d at 641; Cleveland
Heights-Univ. Heights City Sch. Dist. v. Boss, 144 F.3d 391,
398-99 (6th Cir. 1998) (noting that the due weight standard of
review “militates against second guessing the educational
expertise of the administrative officers and conclusions
predicated upon these [sic] expertise”).
Therefore, when reviewing an IEP we must keep in mind
that the state and local educational agencies are deemed to
possess expertise in education policy and practice. The focus
of the Supreme Court and this court upon the presumed

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10 Burilovich, et al. v. Bd. of Educ., et al. No. 98-2187
educational expertise of state and local agencies leads to the
conclusion that the amount of weight due depends upon
whether such expertise is relevant to the decision-making
process. As a result, less weight is due to an agency’s
determinations on matters for which educational expertise is
not relevant, so that a federal court would be just as well
suited to evaluate the situation. More weight is due to an
agency’s determinations on matters for which educational
expertise would be relevant. Furthermore, while the court
may not substitute its own view for that of the state and local
educational agencies, see Rowley, 458 U.S. at 206-07, the
deference due to the administrative findings is less than that
generally accorded to administrative decisions, whereby the
court will uphold a decision if it is supported by “substantial
evidence.” See 5 U.S.C.A. § 706 (West 1996); cf. Rowley,
458 U.S. at 205 (discussing legislative history of IDEA
rejecting substantial evidence standard).
This court recently described the substantial evidence test
as one in which an agency’s findings would be set aside only
when the record clearly precludes the administrative decision
from being justified by a fair estimate of the worth of the
testimony of witnesses, the agency’s informed judgment on
matters within its special competence, or both. See Loral
Defense Sys.-Akron v. NLRB, 200 F.3d 436, 448 (6th Cir.
1999). Because administrative findings in IDEA cases should
be afforded less deference than that given to agencies under
the substantial evidence test, and in view of the IDEA’s
preponderance of the evidence standard, we hold that
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. A court
should defer to the administrative findings only when
educational expertise is relevant to those findings and the
decision is reasonable. By so deferring, “due weight” will
have been given to the state administrative proceedings. We
also reiterate that, when there is a conflict between the
holdings of the local and state hearing officers, the court must
No. 98-2187 Burilovich, et al. v. Bd. of Educ., et al. 11
2Plaintiffs spent some time arguing this point in their briefs, but we
see no need for further discussion in light of this court’s prior holdings on
this point.
3Because we treat this case as submitted on summary judgment,
plaintiffs’ arguments on appeal as to who bears the burden of proof are
irrelevant. Moreover, as we recently held, the party challenging the terms
of an IEP should bear the burden of proving that the placement was not
appropriate, even in a case involving Michigan’s maximum potential
standard. See Dong, 197 F.3d at 799-800.
defer to the state hearing officer’s decision in reviewing the
record on appeal.2 See Renner, 185 F.3d at 641 (holding that
court must defer to the final decision of the state authorities).
In a case involving a motion for summary judgment, the
court should still apply modified de novo review, but must
ensure that there are no genuine issues regarding the facts
essential to the hearing officer’s decision. See Metropolitan
Nashville Pub. Sch., 133 F.3d at 387. In rendering its
decision, the court may still rely upon the hearing officer’s
presumed educational expertise, as long as the material facts
underlying the officer’s determination are not in dispute.3
B. Discussion
Plaintiffs raised numerous issues in their brief. With regard
to procedural matters, plaintiffs argue that an IEP was
finalized in March, not May, of 1996; two meetings in April
1996 were IEPC meetings from which the parents were
excluded; the school district failed to consult with
knowledgeable professionals regarding B.J.’s placement; he
was not properly evaluated; and he was not timely recertified
as autistic. Plaintiffs contend that even if the procedural
requirements of the IDEA were met, the IEP was
substantively invalid because it failed to address B.J.’s unique
needs and was not designed to allow him to attain his
maximum potential. Each issue will be addressed in turn.

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