to the maximum extent possible in developing his IEP." Judge Gould does not explain why the district court's detailed discussion of mainstreaming is clearly erroneous or in error under any standard of review.
In my view, the best means by which to differentiate between such errors is to evaluate each one individually - as colored by each case's particular facts - and to apply a uniform standard that assesses lost educational opportunity or lost parental participation, not by adopting a rule that insulates a subset of errors from future review.
In the absence of guidance from the Court or Congress, we should conclude that IDEA cases are subject to the general principle of harmless error that applies generally in civil and criminal law contexts.
Our differences turn in part on our disagreement on whether the assessment of loss of educational opportunity is a question of fact to be reviewed for clear error, or a mixed question of fact and law, to be reviewed de novo, as can be seen from a comparative review of our opinions, which apply the same standard but reach contrary results.
In fact, our sister circuits have consistently rejected IDEA structural error arguments, and instead have adopted case-by-case, harmless error inquiries similar to our standard, which I have reviewed above. Nor does the structural error position in IDEA litigation find any support in the text or legislative history of the IDEA.
and analogized to the structural defect cases discussed in , holding that the omission of statutorily-mandated reserve officers from military boards evaluating reservists for promotion was a structural error which was per se prejudicial and precluded any subsequent harmless error review.
Applying this correct test for harmless error, I further conclude that the error in composition of the IEP team, under the circumstances of this case, caused a violation of the IDEA and requires reversal of the district court's order granting summary judgment.
Although Judge Clifton in dissent and I in concurrence agree on the rejection of structural error and on the standard for assessing harmless error, we reach different conclusions in the application of the governing standard. We both agree that the harmless error assessment turns here on whether there was a "loss of educational opportunity" for M.L.
Instead, we must assess the school district's error for harmlessness - in accord with our precedent in , ., and - by considering whether the procedural error resulted in a loss of educational opportunity or significantly restricted parental participation in the IEP formation.
The Court of Claims held that the failure to include reserve officers on the selection boards for evaluating reserve officers for promotion was not subject to harmless error analysis.
Accordingly, we must decide whether the FWSD's failure to comply with the requirement of the IDEA that at least one regular education teacher evaluate the unique needs of a disabled student fatally compromised the integrity of the IEP and compels us to reverse the district court's judgment without considering whether the error was harmless or whether the findings of the ALJ and the district court that the IEP meets the substantive requirements of the IDEA are clearly erroneous.
Harmless Error: An error committed during a trial that was corrected or was not serious enough to affect the outcome of a trial and therefore was not sufficiently harmful (prejudicial) to be reversed on appeal.
Judge Gould has applied the harmless error standard of review, instead of the structural defect analysis I have employed, in concluding that the judgment must be reversed.
In doing so, he extrapolates from the criminal context, where the Supreme Court has immunized certain errors that affect the constitutional rights of defendants from harmless error review.