                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 06-3044
JOEL HJORTNESS, A MINOR, BY AND THROUGH HIS
PARENTS AND LEGAL GUARDIANS ERIC HJORTNESS
AND GAIL HJORTNESS, ERIC HJORTNESS, AND
GAIL HJORTNESS,
                                      Plaintiffs-Appellants,
                             v.


NEENAH JOINT SCHOOL DISTRICT,
                                        Defendant-Appellee.
                       ____________
           Appeal from the United States District Court
               for the Eastern District of Wisconsin.
     Nos. 05 C 648, 05 C 656—William C. Griesbach, Judge.
                       ____________
  ARGUED JANUARY 18, 2007—DECIDED AUGUST 20, 2007
            AMENDED NOVEMBER 14, 2007
                   ____________


 Before BAUER, MANION, and ROVNER, Circuit Judges.
  BAUER, Circuit Judge. Joel Hjortness and his parents
brought a due process claim against the Neenah Joint
School District (“the school district”) for denying Joel a
“free appropriate public education,” in violation of the
Individuals with Disabilities and Education Act (“IDEA”)
20 U.S.C. § 1415. An administrative law judge (“ALJ”)
found in favor of the Hjortnesses, and the district court
2                                                No. 06-3044

reversed by granting the school district’s motion for
summary judgment. We affirm.


                     I. Background
  Joel has been diagnosed at various times with obsessive
compulsive disorder, Tourette’s disorder, attention defi-
cit/hyperactivity disorder, autistic spectrum disorder,
oppositional defiant disorder, and anxiety disorder.
Despite these disorders, he is exceptionally bright with
an IQ of 140.
  Until May 2003, Joel attended public school at Shattuck
Middle School in the Neenah Joint School District,1 where
he and his parents resided. In May 2003, Joel’s parents
withdrew him from Shattuck because they believed that
the school district was not adequately addressing his
behavioral needs. His parents enrolled him in private
school: first, at the Kennan Academy in Menasha, Wiscon-
sin until January 2004, and thereafter as a residential
student at the Sonia Shankman Orthogenic School
(“SSOS”) in Chicago, Illinois.
  In November 2003, the school district began its pro-
cess of reevaluating Joel, as required by law. The school
district planned to gather data and then to meet with
Joel’s parents to develop an individualized education
plan (“IEP”) for Joel. On March 12, 2004, a school psychol-
ogist, an occupational therapist, and an autism resource
teacher from the school district observed Joel at SSOS
and interviewed SSOS staff who had worked with him.
Based on this observation and the results of other tests,
the team concluded that Joel met the special education


1
  At Shattuck, Joel maintained a grade point average of 3.5 as
a regular education student.
No. 06-3044                                                3

criteria for autism, other health impairment, and emo-
tional behavioral disability.
   The school district next developed an IEP for Joel. On
April 22, 2004, the school district’s special education
director, a regular education teacher from Neenah High
School and Shattuck Middle School, a special education
teacher from each of these schools, a other health impair-
ment consultant, and the three district staff members
who had visited SSOS, Joel’s mother, and her attorney
met to develop the IEP. At the IEP meeting, the team
discussed Joel’s strengths and weaknesses. The team also
discussed general goals for Joel’s education, which in-
cluded giving Joel instruction in a small group setting.
They identified one specific goal: that Joel would raise
his hand at least 50% of the time when appropriate. No
other specific goals or short-term objectives were identi-
fied at the meeting.
  After the IEP meeting, school district staff prepared
Joel’s IEP for May 17, 2004 through May 16, 2005. The
IEP specified four goals: (1) Joel will demonstrate appro-
priate hand raising procedures 50% of the time in class;
(2) Joel will increase his ability to follow directions given
by authority figures by 50%, as measured by a teacher
monitoring system; (3) Joel will increase his ability to
interpret a situation and respond appropriately in 50%
of situations, as measured by a monitoring system; and
(4) Joel will increase his ability to respond appropriately
when in competitive situations 50% of the time, as mea-
sured by a staff monitoring system. Of the four goals, only
the first was explicitly discussed at the IEP meeting. The
remaining goals were identical to the goals in Joel’s
previous IEP, except that the percentages specified were
lower than the percentages identified in the preceding IEP,
and the short term objectives in support of each goal
varied from the short term objectives in the preceding IEP.
4                                               No. 06-3044

  On June 18, 2004, Joel’s parents requested a due process
hearing to seek reimbursement for placing Joel at SSOS.
The ALJ found that the school district complied with the
substantive requirements of the IDEA by providing
Joel with an IEP that was reasonably calculated to pro-
vide him with some meaningful educational benefit. The
ALJ also found that the school district had committed a
procedural violation of the IDEA because Joel’s IEP was
not substantially developed and the school district had
decided to place Joel in its school before the IEP meeting,
thereby denying him a free appropriate public education.
As a result, the ALJ ordered the school district to reim-
burse the Hjortnesses $26,788.32 for the cost of Joel’s
private school placement. The school district and the
Hjortnesses both appealed this decision to the district
court. The school district moved for summary judgment,
which the district court granted. The Hjortnesses filed
this timely appeal.


                      II. Discussion
  Whether a school district has offered a free appropriate
public education to a disabled student is a mixed question
of law and fact. Heather S. v. State of Wisconsin, 125 F.3d
1045, 1053 (7th Cir. 1997). We review the administra-
tive record and the district court’s findings of fact deferen-
tially, and we review questions of law de novo. Bd. of Educ.
v. Ross, 486 F.3d 267, 270 (7th Cir. 2007).
  The IDEA requires that the school district, as a recipient
of federal education funds, provide children with dis-
abilities a free appropriate public education in the least
restrictive environment. Id. at 273. Specifically, the IDEA
provides:
    To the maximum extent appropriate, children with
    disabilities, including children in public or private
No. 06-3044                                               5

    institutions or other care facilities, are educated with
    children who are not disabled, and special classes,
    separate schooling, or other removal of children with
    disabilities from the regular educational environment
    occurs only when the nature or severity of the dis-
    ability of a child is such that education in regular
    classes with the use of supplementary aids and ser-
    vices cannot be achieved satisfactorily.
20 U.S.C. § 1412(a)(5)(A). The IDEA requires that the
state determine what is uniquely “appropriate” for each
child’s education by preparing an IEP developed through
the joint participation of the local education agency, the
teacher, and the parents. An IEP is defined as “a written
statement for each child with a disability that is devel-
oped, reviewed, and revised in accordance with section
1414(d) of this title.” 20 U.S.C. § 1401(14). A child’s
placement must be based on the IEP. 34 C.F.R.
§ 300.552(b)(2). The statute assures the parents an active
and meaningful role in the development or modification of
their child’s IEP. Ross, 486 F.3d at 274. The statute
imposes both a substantive obligation and a procedural
obligation on the state. Id. at 273-74.


  A. Substantive Compliance
  The Hjortnesses first assert that Joel’s IEP was substan-
tively inadequate because it failed to fully identify
Joel’s disabilities and his resulting needs, his present
levels of educational performance, and his annual goals
and short term objectives. We disagree.
  To be substantively appropriate, the IEP must be
formulated so that Joel would receive the “basic floor of
opportunity [, consisting of] access to specialized instruc-
tion and related services which are individually designed
to provide educational benefit to [him].” Bd. of Educ. v.
6                                              No. 06-3044

Rowley, 458 U.S. 176, 201, 102 S. Ct. 3034, 73 L. Ed. 2d
690 (1982). To accomplish this, the IDEA requires, among
other things, that the IEP include “a statement of the
child’s present levels of educational performance, includ-
ing—(1) how the child’s disability affects the child’s
involvement and progress in the general curriculum. . . .”
20 U.S.C. § 1414(d)(1)(A)(I).
  As the ALJ indicated, considering that medical profes-
sionals have demonstrated difficulty in pinpointing
Joel’s disorders, it is unreasonable to expect the school
district to do better in determining Joel’s predominant or
existing medical disorders. The school district properly
considered the various medical diagnoses and educa-
tional assessments in determining that Joel met the
criteria for autism and other health impairments.
  Joel’s “present levels of educational performance” did not
reflect his current performance because current data
was unavailable. Joel had not been attending school at
the school district for almost a year, and SSOS was still
in the process of observing Joel to gain insight on his
behaviors. The school district gathered all the current
information they could—by visiting SSOS, observing
Joel, and meeting with his current teachers—and incorpo-
rated that data into his IEP.
  Further, the Hjortnesses failed to present any evidence
that Joel would not benefit educationally from the goals
in his IEP. The goals and short term objectives were
targeted to develop his social skills and would have
provided Joel with some meaningful educational benefit. It
was appropriate for the IEP to contain substantially
similar goals and objectives as were contained in the
preceding IEP.
No. 06-3044                                                7

    B. Procedural Compliance
  The Hjortnesses next assert that Joel’s IEP was proce-
durally inadequate because (1) the IEP was written
without Joel’s parents’ participation in the development of
its goals and objectives, (2) the IEP was written without
an SSOS representative at the IEP meeting, and (3) the
school district made its placement decision before the
IEP was written.2 We disagree.
  Procedural flaws do not require a finding of a denial of
a free appropriate public education. However, procedural
inadequacies that result in the loss of educational op-
portunity result in the denial of a free appropriate
public education. Ross, 486 F.3d at 276.
  Considerable time was spent in multiple IEP conferences
at which Joel’s parents and their advocate participated. At
several times during these conferences, the team at-
tempted to set specific goals and objectives, but the
Hjortnesses insisted that “the issue on the table [was
whether the school district would] pay for [Joel] to be
at Sonia Shankman where he needs to be.” The school
district arguably should have held a second IEP meeting to
review the goals and objectives that were not discussed at
the meeting. However, this procedural violation does not
rise to the level of a denial of a free appropriate public
education. The record does not support a finding that Joel’s
parents’ rights were in any meaningful way infringed.
  We note that this determination in no way contra-
venes our decision in Ross. In Ross, the parents of a girl




2
  The Hjortnesses have not argued that the school district’s
placement was not based on the IEP, in violation of 34 C.F.R.
§ 300.552(b)(2).
8                                                 No. 06-3044

with Rett syndrome3 alleged, inter alia, that they were
denied a meaningful opportunity to participate in the
modification of their daughter’s IEP, which constituted a
procedural violation of the IDEA. 486 F.3d at 274. The
Ross Court affirmed the district court’s holding that
the parents did in fact have a meaningful opportunity
to participate in the comprehensive review of their daugh-
ter’s situation and IEP, referencing a 32-page conference
summary report of the seminal meeting at which they
participated. Id. at 275. The consensus reached at the
end of that meeting was to change the girl’s placement;
a decision that the girl’s parents opposed. Id. However,
the Court held that just because the placement was
contrary to the parents’ wishes, it does not follow that
the parents did not have an active and meaningful role
in the modification of their daughter’s IEP, as required
by the IDEA. See id. at 274-75.
  In this case, it is not that Joel’s parents were denied the
opportunity to actively and meaningfully participate in
the development of Joel’s IEP; it was that they chose not
to avail themselves of it. Instead of actively and meaning-
fully participating in the discussions at multiple IEP
meetings, the Hjortnesses refused to talk about anything
other than “[whether the school district would] pay for
[Joel] to be at Sonia Shankman where he needs to be.” As
a result, the school district was left with no choice but to
devise a plan without the meaningful input of Joel’s


3
  Rett syndrome is a “neurodevelopmental disorder character-
ized by normal early development followed by loss of purposeful
use of the hands, distinctive hand movements, slowed brain
and head growth, gait abnormalities, seizures, and men-
tal retardation.” Ross, 486 F.3d at 269 (quoting National Insti-
tute of Neurological Disorders and Stroke, Rett Syndrome
Fact Sheet, http://www.ninds.nih.gov/disorders/rett/detail_rett.
htm?ccs=print).
No. 06-3044                                              9

parents. Under these circumstances, the parents’ intran-
sigence to block an IEP that yields a result contrary to
the one they seek does not amount to a violation of the
procedural requirements of the IDEA. To hold otherwise
would allow parents to hold school districts hostage dur-
ing the IEP meetings until the IEP yields the placement
determination they desire.
  Turning to the Hjortnesses’ next argument, the IDEA did
not require the school district to have an SSOS representa-
tive at the IEP meeting. A private school representative
is only required to attend the meeting if the school dis-
trict placed the child in the private school, see 34 C.F.R.
§ 300.349, which was not the case here. Even though they
were not required to do so, the school district made quite
an effort to ensure input from SSOS. The school district
sent a team to SSOS to visit and interview Joel and his
teachers. The school district also offered Joel’s parents
alternative meeting dates in an effort to allow them to
invite SSOS to attend or participate by telephone. Even
the resulting IEP included data from past evaluations,
current observations, and teacher data that was supplied
by SSOS. The school district also repeatedly offered to
reconvene the meeting once more data from SSOS was
available.
  Finally, we turn to the appellants’ main challenge—that
the school district denied Joel a free appropriate public
education because it predetermined Joel’s placement. The
ALJ found that the school district made its decision to
place Joel in public school before the IEP was written.
However, the IDEA requires that the school district
educate Joel with his nondisabled peers to the “greatest
extent appropriate.” 20 U.S.C. § 1412(a)(5)(A). Recogniz-
ing that we owe great deference to the ALJ’s factual
findings, we find that the IDEA actually required that
the school district assume public placement for Joel. Thus,
the school district did not need to consider private place-
10                                              No. 06-3044

ment once it determined that public placement was
appropriate.
  We find that the district court did not err in finding that
the IEP was reasonably calculated to provide Joel with
some meaningful education benefit and that the school
district did not deny Joel a free appropriate public educa-
tion.


                     III. Conclusion
  For the foregoing reasons, we AFFIRM the judgment of
the district court.




  ROVNER, Circuit Judge, dissenting.        With respect,
I believe that two procedural flaws in the IEP process
compel reversal of the judgment. The ALJ found that
before school officials met with Mrs. Hjortness to begin
discussing the 2004-05 IEP, the school district already
had “made up its mind to place the Student in a small
group setting in the District schools under whatever IEP
was formulated.” R. 1 at 24; id. at 16 ¶ 32; see also id. at
23. The ALJ also found that most of the goals and short-
term objectives incorporated into the IEP were deter-
mined after the April 22, 2004 meeting attended by
Joel’s mother and therefore were arrived at without the
parents’ input. Id. at 16 ¶¶ 33-35; id. at 23. Neither of
these factual findings was clearly erroneous, and together
they amply support the ALJ’s conclusion that Joel’s
parents were deprived of meaningful participation in the
IEP process and that Joel was deprived of a free appro-
priate public education.
No. 06-3044                                              11

   The IDEA’s presumption in favor of educating a dis-
abled student with his nondisabled peers (see ante at 9,
citing 20 U.S.C. § 1412(a)(5)(A)) does not permit a
school district to circumvent the procedures that Con-
gress has mandated by predetermining that a disabled
student should be placed in one of its own schools. A
placement decision is to be based on the IEP. 34 C.F.R.
§ 300.116(b)(2) (formerly § 300.552). The IEP is the
“primary vehicle” for implementing the underlying goals
of the statute. Honig v. Doe, 484 U.S. 305, 311, 108 S. Ct.
592, 597 (1988); see also id. at 311, 108 S. Ct. at 598
(Congress “envision[ed] the IEP as the centerpiece of the
statute’s education delivery system for disabled children.”).
It is the IEP that assesses the student’s current educa-
tional performance, articulates a set of annual goals and
short-term objectives in furtherance of those goals, and
identifies the special education and other services neces-
sary to help the student achieve those goals. 20 U.S.C.
§ 1414(d)(1)(A); Honig, 484 U.S. at 311, 108 S. Ct. at 597-
98. A placement decision that is made before the IEP is
drafted renders what Congress meant to be “the center-
piece of the statute’s education delivery system for dis-
abled children,” id. at 311, 108 S. Ct. at 598, a meaningless
formality. See Bd. of Educ. of Township High Sch. Dist.
No. 211 v. Ross, 486 F.3d 267, 274 (7th Cir. 2007) (if
it were true that IEP meetings with parents “were noth-
ing but an elaborate effort to ratify a decision that the
District had already made without their input . . . then
it would violate the IDEA”); Deal v. Hamilton County Bd.
of Educ., 392 F.3d 840, 859 (6th Cir. 2004); Spielberg v.
Henrico County Public Schools, 853 F.2d 256, 259 (4th
Cir. 1988). Predetermination of a child’s placement
necessarily renders irrelevant what happens next in terms
of meetings between school officials and the child’s par-
ents. Even if Joel’s parents had been more cooperative
with District officials in the IEP process, as my colleagues
suggest they should have been, see ante at 8-9, it would
12                                             No. 06-3044

have made no difference given that the District, as the ALJ
found, had already decided where to place him. Whatever
opportunities Mr. and Mrs. Hjortness were given to
participate in the development of the IEP, and however
substantively appropriate the IEP was on its face, the IEP
process in this case served merely to justify a placement
decision that the District made unilaterally before IEP
meetings with the parents were convened. That is exactly
what this court in Ross (and our sister circuits in Deal and
Spielberg) said is forbidden. 486 F.3d at 274.
  Likewise, an IEP that is drafted largely in the absence
of a student’s parents is not the product of the interac-
tive process that Congress required. See, e.g., W.G. v. Bd.
of Trustees of Target Range School Dist. No. 23, 960 F.2d
1479, 1485 (9th Cir. 1992). The fact that Joel’s parents
were involved in the process prior to the development of
the IEP (see ante at 7) is beside the point. The fact is,
they were not actually involved in preparing the IEP, nor
was the full IEP team reconvened for the parents’ input
once school officials had completed the plan. It is no
answer to say that Joel’s parents did not object to the
ex parte drafting of the IEP once it was presented to them.
See R. 33 at 14. That was not their burden. See W.G., 960
F.3d at 1485. As the ALJ rightly observed, “it was
the obligation of the District to recognize the procedural
flaw[ ] and offer the Parents the opportunity to participat-
ing meaningfully in the development of the annual goals
and objectives, and thereafter to discuss placement
under the IEP as then appropriately developed.” R. 1 at 23.
  Because the procedure followed by the school district
in this case was inconsistent with the core goals and
requirements of the IDEA, I would reverse the district
court’s judgment and sustain the ALJ’s determination
that Joel’s parents are entitled to reimbursement for
the tuition they paid for Joel’s private education in the
2004-05 school year.
No. 06-3044                                            13

 I respectfully dissent.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                 USCA-02-C-0072—11-14-07
