Carlisle Area School v. Scott P. Ex Rel. Bess P. ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
8-8-1995
Carlisle Area School v. Scott
Precedential or Non-Precedential:
Docket 94-7520
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________________
NOS. 94-7520 and 94-7539
__________________
CARLISLE AREA SCHOOL
v.
SCOTT P., BY AND THROUGH HIS GUARDIANS,
BESS P. AND RICHARD E. P.,
Appellant in No. 94-7520
CARLISLE AREA SCHOOL DISTRICT,
Appellant in No. 94-7539
v.
SCOTT P., BY AND THROUGH HIS GUARDIANS,
BESS P. AND RICHARD E. P.
_______________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 93-cv-00458)
_______________________________
Argued: March 10, 1995
Before: BECKER, SCIRICA, and WOOD,0
Circuit Judges.
(Filed: August 8, 1995)
DENNIS C. McANDREWS, ESQUIRE (ARGUED)
315 Upper Gulph Road
Wayne, PA 19087
0
*. The Honorable Harlington Wood, Jr., United States Circuit
Judge for the Seventh Circuit, sitting by designation.
1
Attorney for Scott P., by and through
his
Guardian, Bess P. and Richard E. P.
FRANK P. CLARK, ESQUIRE (ARGUED)
James, Smith & Durkin
20 Valley Road
P.O. Box 650
Hershey, PA 17033
Attorney for Carlisle Area School
District
_______________________________
OPINION OF THE COURT
_______________________________
BECKER, Circuit Judge.
This case arises under the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1485 (1990).
The underlying administrative proceeding against the Carlisle
Area School District was commenced by Scott P., a disabled twenty
year old, through his parents, Richard P. and Bess P. on the
grounds that the school district had not fulfilled its statutory
obligations to Scott under IDEA. The hearing officer at the
local educational level granted the relief requested, i.e.,
residential placement, and six months' compensatory education (to
extend beyond Scott's 21st birthday.) An appeals panel at the
state education agency level reversed the residential placement
order but affirmed the award of compensatory education. The
school district appealed this decision to the District Court for
the Middle District of Pennsylvania, and the parents cross-
2
appealed. The district court affirmed the decision of the
appeals panel. The parents appeal the denial of residential
placement. The school district appeals the award of compensatory
education.
The appeal presents several questions of special
education law of first impression in this Circuit. First, we
must address the parents' contention that the administrative and
judicial proceedings were procedurally defective because of an
alleged violation of IDEA's efficiency-oriented finality
requirements stemming from the district court's two remands to
the appeals panel for clarification. Although the parents assail
the fact that the district court twice remanded the case to the
appeals panel, we hold that these remands did not violate IDEA's
finality requirements since they advanced rather than impeded the
goal of safeguarding access to meaningful judicial review.
Second, the appeal requires us to decide the proper
scope of review to be used by a state appeals panel reviewing a
local hearing officer's decision, and the proper scope of review
by the district court in reviewing a ruling of a state appeals
panel. We conclude that the appeals panel's review is plenary
except that it is required to defer to the hearing officer's
credibility determinations unless non-testimonial, extrinsic
evidence in the record would justify a contrary conclusion or
unless the record read in its entirety would compel a contrary
conclusion. The district court may reach an independent
decision, except that it must accord the decision of the state
agency "due weight" in its consideration. In a related vein, we
3
also address the parents' claim that the appeals panel and the
district court misallocated the burden of proof on the
appropriateness of the proffered Individualized Educational
Program ("IEP"). We conclude that, while school districts bear
the burden of proving the appropriateness of the educational
plans they proffer, they are not required to prove the
inappropriateness of any competing plans advocated by parents.
Next, we consider whether the appeals panel applied the
correct standard in reviewing the order for residential
education. As the district court correctly recognized, IDEA
requires a placement calculated to confer only some educational
benefit (not an optimal education), and also that the program be
delivered in the least restrictive environment. On the developed
record, the district court did not err in concluding that
residential placement was not proper, and thus it correctly
affirmed the appeals panel's reversal of the residential
placement order.
Finally, we must determine the appropriate standard for
the award of compensatory education and the correctness of the
award in this case. Compensatory education effectively extends
the disabled student's entitlement to a free appropriate
education beyond the normal cutoff point, which occurs when the
child reaches age 21. We conclude that the award of compensatory
education was improper here because there was no record evidence
of any violation during the year purporting to serve as the basis
for the award, and certainly no gross or prolonged deprivation,
4
which other courts have required as a precondition to a
compensatory education award.
I. FACTS AND PROCEDURAL HISTORY
Scott P., who was born on February 12, 1973, sustained
serious brain injuries resulting in cortical blindness in a 1980
swimming pool accident.0 Prior to the accident, Scott attended
regular kindergarten and first grade, but has been enrolled in
various special educational programs since that time.
During the 1991-92 school year, Scott's parents and the
school district were unable to agree upon an appropriate
educational program for the 1992-93 year. The plan offered by
the school district would have enrolled Scott in a physical
support class at the Mechanicsburg High School operated by the
Capital Area Intermediate Unit ("CAIU"). One other blind student
and two students suffering from head trauma were also assigned to
this class. Scott's parents contested the appropriateness of
this plan because of its resemblance to the 1991-92 IEP, under
which they contended Scott had not progressed.
The parents thereupon took Scott to the A.I. duPont
Institute, which conducted an evaluation of Scott's needs. The
duPont Institute recommended that Scott be placed in an intensive
0
The accident also caused light spastic hemiplegia, irritable
bowel syndrome, gastroesophageal reflex, von Willebrandt's
disease, temporomandibular joint dysfunction, status post
cholecystectomy, status post ventriculoperitoneal shunt, and
vocal chord weakness. Additionally, Scott has been susceptible
to depression, migraine headaches, recurrent sinus and strep
infections, gastrointestinal problems and hepatitis C.
5
residential program at the Maryland School for the Blind ("MSB")
so that he could attain greater independence. In light of this
recommendation, and given Scott's failure to progress in
preceding years, Scott's family and his private evaluator
submitted that he needed (and that the IEP should provide) the
specialized educational placement for blind students provided at
MSB. In September, 1992, Scott's family enrolled him in MSB;
they also requested the statutorily-provided due process
proceedings in order to contest the educational program the
school district had proposed for Scott. At issue was the
district's obligation to reimburse Scott's parents for his
education at MSB.
Due process hearings were conducted before a state
hearing officer, Dr. Joseph French, on December 3, 15, and 17,
1992. Based on documentary evidence and the testimony of various
experts and teachers, Dr. French filed a report and order
directing the school district to develop an IEP for Scott that
would provide academic, social, and vocational instruction with
blind peers. The order also specified that such instruction
continue beyond normal school hours. The effect of this order
was to require that the school district provide (i.e., pay for)
residential programming for Scott at the MSB, as neither the
District nor the CAIU could accommodate such an IEP in their
existing programs. Dr. French also ordered that Scott receive
six months of education beyond his 21st birthday to "compensat[e]
for the first half of the current [1992-93] school year." Op. at
9 (citations omitted).
6
The school district filed exceptions to Dr. French's
decision. On March 3, 1993, a Pennsylvania Special Education
Appeals Panel, Anne Hartwig presiding, issued a decision which
acknowledged the inadequacy of the 1992-93 IEP, and ordered more
instruction with blind peers, but reversed the order of
residential placement. Although the panel recited that it had
given "due deference" to the hearing officer's findings of fact,
it rejected the finding that Scott required programming beyond
normal school hours on the grounds that the record evidence taken
as a whole did not support the conclusion that Scott required a
residential placement in order to provide programming beyond
normal school hours. However, the panel affirmed the award of
compensatory education.
On April 2, 1993, the school district appealed the
decision of the appeals panel by filing a complaint in the
District Court for the Middle District of Pennsylvania alleging
that "the panel erroneously ordered changes to Scott P.'s
Individualized Educational Program that are in conflict with the
narrative discussion in the panel's decision." A brief
evidentiary hearing was conducted on January 24, 1994, at which
the District Court heard additional evidence concerning Scott's
program at MSB. On March 30, 1994, the district court, which
found the appeals panel decision confusing, ordered that the case
be "remanded to the Pennsylvania Special Education Appeals Panel
for clarification . . . ."
On April 27, 1994, Hartwig delivered a clarification
for the appeals panel. The district court was still dissatisfied
7
with this "clarification," which purported to find the 1992-93
IEP appropriate even though the panel had ordered modifications
to the program in its original opinion; moreover, in justifying
its award of compensatory education, the panel had declared the
1991-92 IEP inappropriate even though the appropriateness of that
program had not been challenged and had not served as the basis
of the hearing officer's award. The district court therefore
remanded this case to the appeals panel for another
clarification. On July 6, 1994, Hartwig issued a second
"clarification." The district court, while commenting that the
"renderings of the Appeals Panel remain somewhat confusing,"
stated that it was according the appeals panel's decision
"considerable deference" and affirmed its order. The parents
appeal the denial of the residential placement; the district
appeals the award of compensatory education.
II. FINALITY
The parents make a claim of procedural defect based on
regulations under IDEA which require that the hearing officer
issue a final order within 45 days of the parents' request for a
hearing and that the appeals panel's decision must be issued
within 30 days of the request for an appeal. 20 U.S.C.
§ 1415(e)(1); 34 C.F.R. §300.512. The parents allege that the
district court violated their procedural rights under IDEA by
twice remanding the action to the appeals panel for
clarification. We disagree.
8
In Muth v. Central Bucks School District, 839 F.2d at
124-26 (3d Cir. 1988), rev'd on other grounds, 491 U.S. 223, 109
S. Ct. 2397 (1989), we specifically prohibited the use of remands
to administrative hearing officers for further proceedings.
Muth, however, dealt with a remand by the secretary of the state
agency to the appeals panel, not a remand by a judge. Moreover,
Muth rested on the rationale that remands to the administrative
hearing officer obstructed the party's access to judicial review.
To prohibit the court from remanding for clarification would
impair the court's ability to review the decision fairly and
undermine the very policies animating Muth. The fact that these
particular remands did not aid the court in disposing of this
case does not invalidate the remands. Thus, while the statute
clearly proscribes remands within the state's administrative
system, we see no basis for prohibiting judicial remands.
III. STANDARD OF REVIEW
A. Introduction
A good deal of the briefing and argument in this appeal
has focused on the standard of review. This attention results
from the fact that three applicable levels of review are at issue
-- our review of the district court's order; the district court's
review of the state appeals panel's decision; and the appeals
panel's review of the hearing officer's decision. We, of course,
exercise plenary review over the district court's conclusions of
law and review its findings of fact for clear error. Wexler v.
Westfield Bd. of Educ., 784 F.2d 176, 181 (3d Cir.), cert.
9
denied, 479 U.S. 825, 107 S. Ct. 99 (1986). Because the parents
here allege that the district court failed to observe its own
proper scope of review, we must determine whether the district
court erred in its interpretation or application of the law
governing the administrative review process, a question over
which we exercise plenary review. Louis W. Epstein Family
Partnership v. KMart Corp., 13 F.3d 762, 765-66 (3d Cir. 1994).
The parents' burden of proof and finality arguments
also hinge on legal interpretations, and are thus subject to
plenary review. Id. We review the district court's
determination of the 1992-93 IEP's appropriateness, a factual
question, see Association for Community Living v. Romer, 992 F.2d
1040, 1044 (10th Cir. 1993); Hampton School Dist. v. Dobrowolski,
976 F.2d 48, 52 (1st Cir. 1992), under a clearly erroneous
standard, Hassine v. Jeffes, 846 F.2d 169, 174 (3d Cir. 1988),
while we exercise plenary review over the legal standard relied
upon to evaluate the IEP and to approve the award of compensatory
education. Wexler, 784 F.2d at 181.
B. Discussion
The parents' threshold argument is that the district
court erred when, despite the fact that the state appeals panel
did not properly defer to the findings and recommendations of the
hearing officer, it affirmed the panel's order. As we have
noted, the administrative regime at issue here creates two
questions pertaining to the appropriate standard of review.
First, we must determine what degree of deference the appeals
panel owes the hearing officer. Second, we must decide the
10
degree of deference owed by a district court reviewing an appeals
panel's reversal of the hearing officer, and we must determine
whether the appeals panel deserves less deference when it
contravenes the hearing officer's factual findings.
1. The Statutory Framework.
IDEA requires that states receiving federal funds for
education must provide every disabled child with a "free
appropriate public education." 20 U.S.C. § 1412(1) (1990). The
core of this entitlement is provided by the IEP, the package of
special educational and related services designed to meet the
unique needs of the disabled child. See Polk v. Central
Susquehanna Intermediate Unit 16, 853 F.2d 171, 173 (3d Cir.
1988), cert. denied, 488 U.S. 1030, 109 S. Ct. 738 (1989).
Regulations promulgated under IDEA entitle parents dissatisfied
with their child's IEP to "an impartial due process hearing." 20
U.S.C. §1415(b); 34 C.F.R. § 300.506-512. States may choose
either a one-or a two-tier administrative system. Pennsylvania
has a two-tier system in which the initial hearing occurs at the
local educational agency level followed by an "independent"
review of that hearing at the state educational agency level. 20
U.S.C. § 1415(c) (1990). Federal regulation § 300.510,
promulgated under § 1415(c), provides that an "impartial" officer
is to conduct the review and that such officer should make an
"independent decision." See 34 C.F.R. §300.510 (1993).
A party aggrieved by a final order of the state
authorities may appeal to federal court. Section 1415(e) of IDEA
11
provides that district courts "shall receive the records 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." 20 U.S.C. § 1415(e) (1990).
Although this provision could be read to permit the district
court to review the evidence de novo, disregarding the findings
and rulings of the state agencies, the Supreme Court has required
that federal district courts afford "due weight" to state
administrative proceedings in evaluating claims under IDEA. See
Board of Educ. v. Rowley, 458 U.S. 176, 206, 102 S. Ct. 3034,
3051 (1982). As we explained in Oberti v. Board of Education,
995 F.2d 1204, 1219 (3d Cir. 1993), district courts have
discretion to determine how much deference to accord the
administrative proceedings, and although the district courts
"must consider the administrative findings of fact, [they are]
free to accept or reject them." Id. at 1219 (quoting Jefferson
County Bd. of Educ. v. Breen, 853 F.2d 853, 857 (11th Cir.
1988)). But if the district court chooses to depart from the
agency's ruling, it should provide some explanation for its
departure. See Doyle v. Arlington County School Bd., 953 F.2d
100, 105 (4th Cir. 1991).
The ramifications of Rowley's injunction to give "due
weight" are unclear where a state creates a two-tiered
administrative regime and each tier arrives at a different
conclusion. The circuits have split on the question whether
federal district courts acting pursuant to Rowley should accord
12
due weight to the trial level hearing officer or to the appeals
panel where the two bodies differ and where the appeals panel may
not have properly deferred to the hearing officer's findings. In
Thomas v. Cincinnati Board of Education, the Court of Appeals for
the Sixth Circuit held that the "only logical position" was to
defer to the appeals panel, the final decision-maker of the state
agency, over the hearing officer. 918 F.2d 618, 624 (6th Cir.
1990). See also Karl v. Board of Education of Geneseo County
School Dist., 736 F.2d 873, 877 (2d Cir. 1984) ("We believe
Rowley requires that federal courts defer to the final decision
of the state authorities, and that deference may not be eschewed
merely because a decision is not unanimous or the reviewing
authority disagrees with the hearing officer."). In contrast,
the Fourth Circuit has held that the district court erred in
deferring to a reviewing officer who, reversing the hearing
officer, discredited a witness he had not seen or heard testify.
See Doyle, 953 F.2d at 100.
At the threshold, we must decide whether the appeals
panel failed to defer to the hearing officer, for if we find that
the appeals panel adequately deferred to the hearing officer,
then the district court plainly complied with Rowley in according
"considerable deference" to the appeals panel's decision.
Because the provisions of IDEA that accommodate the two-tier due
process system do not specify the proper standard, see Perry A.
Zirkel, The Standard of Review Applicable to Pennsylvania's
Special Education Appeals Panel, 3 WIDENER J. PUBLIC L. 871, 876
(1994), we must first decide what that standard is.
13
a. Appeals Panel Review of the Hearing Officer's
Decision
Section 1415(c) describes the state agency's review as
follows: "If the [initial impartial] hearing ... is conducted by
a local educational agency ..., any party aggrieved by the
findings and decision rendered in such a hearing may appeal to
the State Education Agency which shall conduct an impartial
review of such hearing. The officer conducting such review shall
make an independent decision upon completion of such review." 20
U.S.C. §1415(c) (emphasis added). The regulation interpreting
this provision further provides that the reviewing officer may
"[s]eek additional evidence if necessary," and may "[a]fford the
parties an opportunity for oral or written argument, or both, at
the discretion of the reviewing official." 34 C.F.R. §
300.510(b)(3)-(4) (1993) (emphasis added). Although this
language does not explicitly define the appeals panel's scope of
review, it suggests a non-deferential standard.0 The fact that
the statute contemplates that the appeals body will make an
"independent decision" suggests not that the appellate body
should defer but that it should reach a decision based on its own
0
We need not address the question whether federal law pre-empts
state laws which specify the appeals panel's standard of review
since the Pennsylvania statute creating the apparatus for the
two-tiered due process hearing is silent on this issue. The
Pennsylvania statute provides: "The decision of the impartial
hearing officer may be appealed to a panel of three appellate
hearing officers. The panel's decision may be appealed further
to a court of competent jurisdiction. In notifying the parties
of its decision, the panel shall indicate the courts to which an
appeal may be taken." 22 PA. CODE § 1464(m) (1992). The
Pennsylvania courts have not consistently interpreted this
statute to impose a definitive standard of review. See Zirkel, 3
WIDENER J. PUBLIC L. at 878-82.
14
evaluation of the evidence, "independent" of the findings of the
hearing officer. The language of the regulation, see 34 C.F.R.
§ 300.510(b)(3) (1993), bolsters this interpretation, since the
receipt of additional evidence necessarily entails the weighing
of the new evidence against the evidence presented in the first
(administrative) hearing.
As a matter of general appellate principle, however,
appeals panels ordinarily defer to the trial presider's factual
findings based on credibility judgments about the witnesses
presented at the trial or hearing. For example, Rule 52(a) of
the Federal Rules of Civil Procedure states: "Findings of fact,
whether based on oral or documentary evidence, shall not be set
aside unless clearly erroneous, and due regard shall be given to
the opportunity of the trial court to judge the credibility of
the witnesses." Fed. R. Civ. P. 52(a). See also Anderson v.
Bessemer City, 470 U.S. 564, 575, 105 S. Ct. 1504, 1512 (1985)
(requiring even greater deference to the trial court's findings
regarding the credibility of witnesses than to the court's other
fact findings).0 But deference to a factfinder's particular
credibility judgment does not necessarily result in deference to
all of the findings of fact based on that judgment.
While review of credibility-based factual findings is
limited, it is not meaningless. "Where . . . the findings . . .
0
Obviously, conclusions of law receive plenary review. See,
e.g., Louis W. Epstein Family Partnership v. KMart Corp., 13 F.3d
762, 765-66 (3d Cir. 1994) (applying plenary review to choice,
interpretation and application of the law to the historical
facts). Moreover, a trial court cannot shield a legal error from
review simply by labelling it as a factual finding. Id.15
are not supported by the record, and indeed, the record supports
contrary findings, we must reverse." Ali v. Gibson, 631 F.2d
1126, 1129 (3d Cir. 1980), cert. denied, 449 U.S. 1129 (1981);
see also Anderson, 470 U.S. at 575, 105 S.Ct. at 1512(restricting deference to cases where credibility evidence is not
contradicted by "extrinsic evidence"); Cooper v. Tard, 855 F.2d
125, 126 (3d Cir. 1988) (limiting appellate review to an
assessment of whether there is enough evidence on the record to
support such credibility findings).
We thus embrace the Fourth Circuit's approach in Doyle
v. Arlington County School Board, 953 F.2d at 105, to the extent
that that decision was premised on this specific principle, that
credibility-based findings deserve deference unless non-
testimonial, extrinsic evidence in the record would justify a
contrary conclusion or unless the record read in its entirety
would compel a contrary conclusion. But beyond this rather
narrow class of record-supported, credibility-based factual
findings, we think that, to give the statute's language about
"independent" decisions effect, the appeals panel must have much
more leeway in reviewing other non-credibility based findings of
the hearing officer. See Zirkel, 3 WIDENER J. PUBLIC L. at 892. We
will therefore defer to the appeals panel rather than the hearing
officer in most circumstances, bringing us closer to the approach
taken by the Second and Sixth Circuits in Karl v. Board of
Education of Geneseo and Thomas v. Cincinnati Board of Education,
respectively. See supra at p. 11-12.
16
Our approach is also consistent with administrative law
principles, which permit an agency or board freely to accept or
reject an ALJ's findings and conclusions of law. Section 557(b)
of the Administrative Procedures Act (APA) provides: "On appeal
from or review of the initial decision, the agency has all the
powers which it would have in making the initial decision except
as it may limit the issues on notice or by rule." 5 U.S.C.
§ 557(b) (1995). Courts review the board's decisions, not those
of the ALJ's. Starrett v. Special Counsel, 792 F.2d 1246, 1252
(4th Cir. 1986) (citing 3 K. Davis Administrative Law Treatise, §
17.16 (2d ed. 1980)).
Moreover, limiting the appeals panel's deference to
those situations involving record-supported credibility
determinations tracks the approach taken by other administrative
regimes, such as that created by the National Labor Relations
Act. 29 U.S.C. § 151 et seq. (1973 and Supp. 1995); see Stein
Seal Co. v. NLRB, 605 F.2d 703 (3d Cir. 1979) (holding that the
Board was free to make fact findings contrary to the ALJ's so
long as they are supported by substantial evidence); Local 259,
United Auto., Aerospace and Agr. Implement Workers v. NLRB, 776
F.2d 23 (2d Cir. 1985) (upholding the decision of the Board where
differences between ALJ and the board did not result from
divergence of views as to credibility of testimony concerning
evidentiary facts but instead resulted from differences in
overall judgment as to proper inferences and ultimate
determination).
17
We thus hold that appeals panels reviewing the fact
findings of hearing officers in two-tier schemes (such as
Pennsylvania's) exercise plenary review, except that they should
defer to the hearing officer's findings based on credibility
judgments unless the non-testimonial, extrinsic evidence in the
record would justify a contrary conclusion or unless the record
read in its entirety would compel a contrary conclusion.
b. District Court Review of the Appeals Panel
As we noted, see supra at 11, IDEA empowers the
district court to hear additional evidence, and directs the court
to base its decision on the preponderance of the evidence. We
have interpreted Rowley's mandate to accord "due weight" to the
administrative proceedings as a requirement to consider --
although not necessarily to accept -- the administrative fact
findings. Oberti, 995 F.2d at 1219. The precise question here is
whether the district court owes less consideration to the
administrative fact findings when the second tier reversed the
first tier. Clearly, the district court's review should be
unaffected where the appeals panel owes no deference to the
hearing officer. Thus, the issue is whether the district court's
review should be any less deferential where the appeals panel
disregarded a record-supported, credibility-based factual
determination of the hearing officer.
Given our decision about the appeals panel's scope of
review, we conclude that a district court should still give "due
weight" to the appeals panel's decision when it reverses the
hearing officer's conclusions of law, inferences from proven
18
facts, and factual findings based on credibility judgments where
non-testimonial, extrinsic evidence justified the appeals panel's
contrary decision.0 In this case, because the appeals panel
0
We assume without deciding that, under IDEA, a district court
should accord somewhat less consideration to an appeals panel
ruling that disregards a hearing officer's credibility judgments
where this standard is not met. We base this assumption on the
standards applicable in other statutory regimes that also involve
a two-level administrative proceeding. See Chen v. General
Accounting Office, 821 F.2d 732 (D.C. Cir. 1987) (requiring
administrative board to accord great deference to those findings
of original decision maker that turned on credibility judgments);
Brock v. L.E. Myers Co., High Voltage Div., 818 F.2d 1270 (6th
Cir. 1987) (requiring Occupational Safety and Health Review
Commission to articulate reasons for failing to credit findings
of an ALJ who had a unique opportunity to observe demeanor of
witnesses); Citizens St. Bank v. Federal Deposit Ins. Corp., 718
F.2d 1440 (8th Cir. 1983) (scrutinizing agency's decision where
agency departed from ALJ's finding without reflecting attentive
consideration to ALJ's decision); Haberson v. NLRB, 810 F.2d 977(10th Cir. 1987) (requiring NLRB to accord ALJ findings due
weight although board is not bound by ALJ findings). Cf. Stein
Seal Co. v. NLRB, 605 F.2d 703 (3d Cir. 1979) (regarding the
ALJ's findings as "merely advisory" where the Board's contrary
findings are supported by substantial evidence). But see
Starrett v. Special Counsel, 792 F.2d 1246 (4th Cir. 1986)
(allowing Merit Systems Protection Board to accept or reject
ALJ's findings and conclusions of law). The National Labor
Relations Act caselaw specifically addressing the issue of
judicial review of administrative appeals also suggests that, al-
though district courts should normally defer to the Board's deci-
sions, the courts should be less deferential where the Board
reached a decision contrary to the ALJ's. See GSX Corp. of
Missouri v. NLRB, 918 F.2d 1351 (8th Cir. 1990) (reviewing
board's findings more critically where board's findings are
contrary to ALJ's); C.E.K. Indus. Mechanical Contractors, Inc. v.
NLRB, 921 F.2d 350 (1st Cir. 1990) (applying "slightly" less
deferential standard to the board where it reaches a conclusion
opposite to the ALJ); Centre Property Management v. NLRB, 807
F.2d 1264 (5th Cir. 1987) (applying "more searching" scrutiny to
board's findings where they conflict with ALJ's); NLRB v. Cooper
Union for Advancement of Science and Art, 783 F.2d 29 (2d Cir.
1986) (applying higher scrutiny to board findings that differ
from ALJ's but only where differences concern evidence that turns
on credibility). But see Glaziers Local Union 558 v. NLRB, 787
F.2d 1406 (10th Cir. 1986) (applying the same standard to the
board whether or not it reached conclusions contrary to the ALJ).
19
found that the extrinsic evidence in the record supported
conclusions contrary to those of the hearing officer, the
district court correctly gave the panel's decision "due weight"
notwithstanding the panel's differences with the hearing officer.
2. The Nature of the Disputed Rulings.
We turn to the nature of the disputed rulings, for
application of the standard of review turns thereon. While this
discussion will propel us to some degree into a discussion of the
merits, treated infra, that cannot be avoided. Although Scott's
parents understandably want this court to view the contested
portions of the hearing officer's ruling as record-supported
credibility judgments that would be shielded from appeals panel
review, they are in reality credibility findings that are
contradicted by not insubstantial record evidence. With respect
to the appeals panel's finding that the 1992-93 IEP was
appropriate, the parents claim that the appeals panel
"effectively overturned the critical finding by the Hearing
Officer that 'for the last few years [Scott's] academic
achievement, as determined by his teacher, has been (only)
maintained and when measured by standardized tests has continued
to be at the fourth to fifth grade level.'" The record, however,
contained ample evidence that Scott had made progress. When
measured by teacher-constructed exams, Scott's academic
Because the disputed portions of the hearing officer's opinion
did not find support in the non-testimonial, extrinsic evidence
in the record, however, they were not entitled to deference by
the appeals panel, and we need not decide this issue.
20
achievement had improved. HO Op. at 4. The record also notes
that Scott had made progress in reading and writing braille. Id.In any event, appropriateness is judged prospectively
so that any lack of progress under a particular IEP, assuming
arguendo that there was no progress, does not render that IEP
inappropriate. See infra at 30-32. However, even if the
observation about progress under the 1991-92 IEP did reflect on
the legal appropriateness of the 1992-93 IEP, it could not,
standing alone, support the hearing officer's conclusions about
the 1992-93 IEP: additional inferences and conclusions would have
to be drawn. For example, one would have to assume that Scott's
needs had remained completely unchanged between the years, and
that one could attribute Scott's lack of progress during 1992-93,
for example, to the failure of the 1992-93 program to provide a
service for a need that had manifested itself during the 1991-92
year (prior to the development of the relevant IEP).
Consequently, the appeals panel would not have needed
to set aside Dr. French's "findings" about the credibility of the
teacher and the mobility specialist who testified that they had
seen no progress in recent years to find that the 1992-93 IEP was
appropriate. Rather, the appeals panel could have credited their
statements and nevertheless found that the 1992-93 plan passed
muster because of the additions to the 1992-93 program0 or
0
The plaintiffs' argument that the compensatory education award
mandates residential placement depends on the identity of the
1991-92 IEP with the 1992-93 IEP, but there are some important
differences. The 1992-93 plan provides for psychological
counseling with blind youths, OT/PT monitoring, and transition
planning, three "related services" not supplied in the earlier
21
because of changes in Scott's needs. Alternatively, the appeals
panel could have concluded that the non-testimonial, extrinsic
evidence in the record evidence did not support the findings.
While either of these approaches could independently
justify the appeals panel in making a finding different from the
hearing officer, the appeals panel invoked both bases in this
case. The panel carefully distinguished the content of the 1992-
93 IEP from that of the 1991-92 IEP (see 4/27/94 Order at 2),
thus breaking the link between progress made under prior IEPs and
the appropriateness of the 1992-93 IEP. The panel also evidenced
its searching review of all the record evidence when it stated
that "there was sufficient evidence in the record so as to allow
the officer to find that the District had attempted to provide
Scott with an [appropriate] IEP . . . ." (4/27/94 Order at 2.)
At all events, the core issue in this case pertains to
the state appeals panel's reversal of the hearing officer's award
of residential education at the MSB. The parents contend that
the appeals panel "simply rejected Dr. French's critical factual
findings that 'in addition to regular therapy, Scott needs help
from peers with similar problems . . . . He needs programming
beyond typical school hours to have sufficient intensity to make
additional gains.'" But here too, the appeals panel did not
plan. The 1992-93 IEP also contains a much more detailed set of
goals/predictions in the "Content" section, and a much more
specific list of "Specially Designed Instruction." Additionally,
the later program reflected more ambitious "Expected Post-School
Outcomes," listing, for example, supported employment or
sheltered employment where the earlier plan had only stated "will
explore more specific evaluations." Compare generally, 1992-93
IEP, 582-596a, with 1991-92 IEP, 702a-710a.
22
simply reject the testimony relied on by the hearing officer so
much as find that the record did not support the officer's
conclusion. In particular, the hearing officer relied on
testimony that Scott needed his school instruction to be
reinforced by other activities to find that these reinforcing
activities needed to occur "during other hours of his day," a
phrase he took to require residential placement. The appeals
panel believed, however, "that there was insufficient evidence in
the record" to support the conclusion that those reinforcing
activities had to occur "during other hours of his day." 4/27/94
Order at 3.
The appeals panel's rejection of the residential
placement also resulted from its doubts about the attribution of
Scott's failure to accept his blindness (and its effects on his
progress) to the deficiency of peer contact afforded by the
school district's IEP. See 3/3/93 Order at 4 n.13 ("The record
seems to indicate that this inability or unwillingness by Scott
to accept his handicap may account for his apparent lack of
progress as anticipated by his teachers and parents. The issue,
however, is whether more contact with blind peers is the remedy
or whether increased skills will help Scott accept his
handicap.")
Had the appeals panel found that Scott did not need any
peer contact and/or that he did not require any additional
programming, the appeals panel would have been rejecting well-
supported testimony credited by the hearing officer. But the
record evidence did not unequivocally support the hearing
23
officer's findings with respect to progress under prior IEP's,
off-hour programming, or the need for more peer contact. Because
the record evidence did not support the findings, this is simply
not a case where the panel encroached on the credibility
judgments of the hearing officer, for we agree with the appeals
panel that "the reasons why Scott has not made the anticipated
progress in his educational placement remain unclear." More
specifically, it appears that Scott was not attending school for
the full day and missed certain extended periods due to various
illnesses.
Both the appeals panel and the hearing officer felt
that full implementation of the school district's IEP was impeded
by those factors. See 3/27/94 Order at 2 ("The panel agreed with
the Hearing Officer that a significant difficulty in evaluating
the appropriateness of the proposed '92 IEP was Scott's failure
to attend his school program for a full day. The officer
speculated, if Scott did not go home at 1 p.m., he could have
training in daily living skills provided at the school."); HO Op.
at 4. As a consequence, the testimony that Scott needed more
programming, even if credited, does not compel residential
placement, especially in light of the 1992-93 IEP's proposal to
provide "full day" programming.
Neither does Scott's need for peer contact necessarily
require residential placement, since the appeals panel found that
there was sufficient evidence in the record
so as to allow the officer to find that the
District had attempted to provide Scott with
an IEP that would permit him an opportunity
to interact with peers. While the
24
opportunity to interact, as provided by the
District, may not be [sic] have been ideal or
optimal, nevertheless, the panel concluded
that the District had acted in a manner that
would have allowed Scott to reasonably
benefit from his placement, in this context
of interaction with peers.
4/27/94 Order at 2-3. Aside from the fact that evidence
supporting the need for more peer contact was contradicted, to
give such testimony dispositive effect would run afoul of at
least two legal propositions under IDEA (discussed below): that
the district need not provide the optimal IEP, and that the
program be provided in the least restrictive educational environ-
ment appropriate to the needs of the child. 20 U.S.C.
§ 1412(5)(B) (1990).
The panel correctly stated the law when it wrote: "The
Hearing Officer's conclusion that Scott must then be entitled to
a residential placement is incorrect. The standard to be applied
in determining the least restrictive alternative is not to find
an optimum placement for Scott but rather to decide whether an
appropriate educational placement can be achieved in a non-
restrictive setting." See 3/3/93 Op. at 5. Under the
appropriate legal framework, therefore, even uncontroverted
testimony that many more hours of programming or that contact
with many peers would benefit Scott would not support the
adoption of a more restrictive residential placement. Moreover,
even if the appeals panel had reversed findings based on
uncontradicted testimony, it would not necessarily change the
result in this case. In light of Oberti, 995 F.2d 1204 (3d Cir.
1993), after considering the administrative findings of fact, the
25
district court was free to reach a different conclusion from its
independent review of the record.
Thus, the district court could effectively affirm the
panel by independently finding its own facts contrary to those
found by the hearing officer. Because we are confident that the
district court did independently consider the record, we believe
that it could affirm the appeals panel decision even if the
appeals panel had acted improperly in reversing the hearing
officer's findings.0 The same arguments refute the parents'
contention that the district court erred when it affirmed an
appeals panel ruling it conceded to be "somewhat confusing." The
district court could effectively affirm the panel, despite its
inability to precisely discern the panel's ratio decidendi, by
making rulings based on its independent review of the record and
the preponderance of evidence.
3. Conclusion
Because the contested "findings" of Dr. French (i.e.,
those over which the appeals panel and Dr. French disagree) do
not find unmixed record support, we conclude that the district
court correctly accorded the appeals panel "substantial
consideration," notwithstanding the fact that the panel did not
adopt the hearing officer's credibility-based recommendations.
Moreover, to the extent that the hearing officer's
recommendations offended other provisions of IDEA, they rested on
0
Although the district court did accord the decision of the
Appeals Panel "considerable deference," its opinion also evidenc-
es an independent review of the record. See Dist. Ct. Op. at 7,
11.
26
an error of law over which the appeals panel exercised plenary
review. Thus, we need not address the question whether the
"consideration" the district court afforded the appeals panel
would have been appropriate if the panel had in fact encroached
on the limited terrain of credibility judgments falling within
the primary purview of the hearing officer.
IV. BURDEN OF PROOF
The parents make an interesting argument that the
appeals panel erroneously placed the burden of proving the
inappropriateness of the 1992-93 IEP on them. Although they fail
to identify any specific element(s) of the IEP on which the
school district failed to demonstrate appropriateness, the
parents rely on the panel's reversal of the order of residential
placement as proof that the burden had been improperly shifted.
Contending that the MSB provided better-- and to them the only
adequate--opportunities for contact with blind peers and for
expanded programming, they reason that it is also the district's
burden to prove the inappropriateness of any other IEP they might
advocate. We disagree.
In administrative and judicial proceedings, the school
district bears the burden of proving the appropriateness of the
IEP it has proposed. Oberti, 995 F.2d at 1219; Fuhrmann v. East
Hanover Bd. of Educ., 993 F.2d 1031, 1035 (3d Cir. 1993) ("[T]he
burden of showing that the placement is 'appropriate' rests with
the school district."). But that does not mean that the school
district also bears the burden of proving the inappropriateness
27
of any alternative IEP that a student's parents might suggest.
Such a requirement would not only impose a very substantial
burden on the district, but it would also conflict with Rowley
and its progeny to the extent that such a general rule would
effectively necessitate proof that a district's IEPs were the
best rather than simply proof that they conferred some education-
al benefit.
IDEA's requirement that the placement involve the least
restrictive educational environment, 20 U.S.C. § 1412(5)(B),
further erodes the parent's arguments about the burden of proof.
In Oberti, the school district bore the burden of proving
appropriateness when it advocated a more restrictive placement,
and its teachings are instructive on the question whether it is
the proponent or the school district who bears the burden of
proving the necessity for a more restrictive placement. In
Oberti, we recognized "a strong presumption in favor of
mainstreaming", 995 F.2d at 1214, and explained that this
presumption "would be turned on its head if parents had to prove
that their child was worthy of being included, rather than the
school district having to justify a decision to exclude the child
from the regular classroom." Id. at 1219.
These principles are comparably valid here where the
parents seek a more restrictive environment. It simply cannot
be, in light of the clear congressional preference for inclusion,
id. at 1214, that the district bears the burden of proving the
superiority (not mere appropriateness) of the district's
proffered less restrictive setting. We therefore will not
28
require the district to prove the inappropriateness of the more
restrictive MSB placement.
V. RESIDENTIAL PLACEMENT
The parents argue that the court erred by finding that
the 1992-93 IEP was appropriate when that plan so closely
resembled the 1991-92 IEP which, they assert, the court
implicitly impugned by affirming the appeals panel's award of
compensatory education. In addition, the parents contend that the
fact that the appeals panel ordered modifications to the 1992-93
IEP (in its first 3/3/92 order) must mean that the panel regarded
the 1992-93 IEP to be inappropriate. Specifically at issue is
the appeals panel's reversal of that portion of the hearing
officer's order, premised on the alleged inappropriateness of the
1992-93 plan, which effectively required residential education at
MSB.
The principal question, however, even assuming the
1992-93 IEP was somehow inappropriate, is whether an award of
residential education was the proper response. The statutory
framework imposes dual requirements on school districts. On the
one hand, IDEA requires only that school districts provide an
"appropriate" IEP, gauged by whether the IEP is "sufficient to
confer some educational benefit." Rowley, 458 U.S. at 200, 102
S. Ct. at 3048. Districts need not provide the optimal level of
services, or even a level that would confer additional benefits,
since the IEP required by IDEA represents only a "basic floor of
opportunity." Id. at 201, 102 S. Ct. at 3048. See also Fuhrmann
v. East Hanover Bd. of Educ., 993 F.2d 1031, 1037, 1040 (3d Cir.
29
1993); Kerkam v. Superintendent D.C. Public Schools, 931 F.2d 84,
88 (D.C. Cir. 1991) (refusing to test appropriateness by
comparing disputed IEP with proffered alternatives). Moreover,
IDEA also commands the school district officials to construct a
program in the least restrictive educational environment
appropriate to the needs of the child. See 20 U.S.C.
§ 1412(5)(B) (1990). Residential placement is, by its nature,
considerably more restrictive than local extended day
programming. See Kerkam, 931 F.2d at 87; G.D. v. Westmoreland
School Dist., 930 F.2d 942, 948 (1st Cir. 1991); Roland M. v.
Concord School Comm., 910 F.2d 983, 992-93 (1st Cir. 1990).
In our view, the district court did not err in
concluding that the 1992-93 IEP was appropriate in the legally
relevant sense because that program was calculated to confer some
educational benefit on Scott. Although the parents' brief is not
entirely clear on this point, its attack on the appropriateness
of the 1992-93 IEP appears principally to rely on that plan's
alleged similarity to the 1991-92 IEP, rather than make a more
direct challenge to appropriateness by identifying particular
needs not addressed by the 1992-93 program. This reliance is
misplaced, for the alleged similarity of the 1991-92 and the
1992-93 IEP's does not mandate the conclusion that a decision
ordering compensatory education is somehow irreconcilable with
the refusal to order residential placement. As we explained in
Fuhrmann v. East Hanover Board of Education, 993 F.2d 1031, 1040
(3d Cir. 1993), "the measure and adequacy of an IEP can only be
determined as of the time it is offered to the student, and not
30
at some later date. . . . Neither the statute nor reason
countenance 'Monday Morning Quarterbacking' in evaluating the
appropriateness of a child's placement." See also Roland M. v.
Concord School Comm., 910 F.2d 983 (1st Cir. 1992).
Consequently, Scott's failure to make progress in the 1991-92
IEP, a judgment made retrospectively, does not render either the
1991-92 IEP or the 1992-93 IEP inappropriate. Of course, if a
student had failed to make any progress under an IEP in one year,
we would be hard pressed to understand how the subsequent year's
IEP, if simply a copy of that which failed to produce any gains
in a prior year, could be appropriate.
Moreover, the parents gloss over the many assumptions
needed to equate the 1991-92 IEP that the appeals panel had found
inappropriate with the status of the 1992-93 IEP. In particular,
the parents believe that the two IEP's are virtually identical
although they themselves concede that the 1992-93 IEP included
additional goals and objectives and an arrangement for
psychological counseling. (appellant's brief at 10). See also
supra note 5. The parents apparently assume that these are
merely formal additions, but that is not so. An IEP is a written
document containing a statement of current educational status,
annual goals, short term objectives, a description of the type of
program and reasons for its selection, projected dates for
initiation and duration, and some objective criteria by which
instructional objectives can be evaluated. 34 C.F.R. § 300.346(1993). The differences between the 1992-93 IEP and the 1991-92
IEP are not merely formal; they reflect the very essence of an
31
IEP. As we have explained, the statute requires that school
districts prepare the IEP's based on the student's needs; so long
as the IEP responds to the needs, its ultimate success or failure
cannot retroactively render it inappropriate.
Importantly, the objectives and services added to the
1992-93 IEP address some of the bases the parents have used to
argue for the residential placement. For instance, the district
proposed group counseling for blind youths, responding to Scott's
need for more contact with blind peers. The plan also responded
to the need for extended hour services by providing orientation
and mobility training to Scott and his family in their home,
presumably during non-school hours. (Appellee's brief, n.3). And
despite the parents' insistence that only the MSB can adequately
educate Scott, the district's IEP addresses each of the program
needs identified by the MSB diagnostic team. (Appellee's brief at
24-27). Based on this similarity to the MSB plan, the one
endorsed by the parents, a correct application of the prospective
appropriateness inquiry supports the district court's conclusion
that the 1992-93 program was appropriate.
The parents, however, contend that only the residential
placement recommended by their experts could provide Scott with
the requisite "intensity" of services needed for him to make any
progress. We think this argument turns on the alleged
superiority of the MSB program rather than the inappropriateness
of the district's 1992-93 IEP. We do not denigrate the quality
of the program available at the MSB and acknowledge that Scott
might have benefited more from being in it. Nor can we doubt the
32
parents' best intentions in attempting to seek the optimal
placement for their son. But we must agree with the district
court and the appeals panel in holding that program optimality is
not the standard. See 3/3/92 Order at 4; Dist. Ct. Op. at 7.
Rowley and Furhmann clearly hold that a program is appropriate if
it confers some educational benefit; it does not need to be
superior to the alternatives. See Rowley, 458 U.S. at 200, 102
S. Ct. at 3048; Fuhrmann, 993 F.2d at 1037. Even assuming that
"intensity" was required to confer some benefit, the district's
IEP still satisfies Rowley's appropriateness test. While the
district concededly did not propose full day programming for
Scott, it did offer programming that could have been more
"intense" than what Scott had actually been experiencing. Due to
illnesses and an evaluation at another facility, however, Scott
apparently missed a substantial number of days during the 1991-92
school year, and his fatigue apparently caused his parents to
insist that Scott end his school day at 1 pm, a full hour and a
half early.
In sum, even if it was not optimal, the 1992-93 IEP was
calculated to confer educational benefit. IDEA does not require
more. In fact, on this record, the district court would have
erred if it had ordered the allegedly "better" residential
placement since such an order would have violated other
provisions of IDEA for, as we have explained, an IEP must not
only be designed to confer some educational benefit, but it also
must deliver the programming in the least restrictive educational
environment. See 20 U.S.C. § 1412(5)(B) (1990). Even if the
33
1992-93 IEP was not as responsive to the expert's recommendations
as the parents might like, the court's authority to order the
residential education (which may indeed provide Scott with
"better" services) is limited by this command.
Residential placement at MSB is not, of course, the
least restrictive educational environment. The least restrictive
environment is the one that, to the greatest extent possible,
satisfactorily educates disabled children together with children
who are not disabled, in the same school the disabled child would
attend if the child were not disabled. See 20 U.S.C. §
1412(5)(B) (requiring maximal educational integration of disabled
children with children who are not disabled, and restricting
separate schooling to situations when the nature or severity of
the disability is such that education in regular classes with the
use of supplementary aids and services cannot be achieved
satisfactorily); 34 C.F.R. § 300.552; see also Oberti, 995 F.2d
at 1214-16; Cordero v. Pennsylvania Dep't of Educ., 795 F.Supp.
1352 (M.D. Pa. 1992).
One of the expressed justifications for the MSB
placement was to maximize Scott's contact with disabled peers.
This approach, while conferring benefits in some spheres,
necessarily minimizes Scott's contact with children without
disabilities, and thus directly conflicts with the statute's
objective of inclusion. In a similar factual scenario, the D.C.
Circuit reversed a district court's order of residential
education for a child who also could have benefitted from "an
integrated opportunity for daily living skill reinforcement,
34
recreation, and peer interaction after the six-hour school day."
Kerkam v. Superintendent D.C. Public Schools, 931 F.2d at 86. In
Kerkam, the court explained:
The decision [to order residential education
over day placement at a district school]
turned on [the court's] understandable
concern for Alexander's best interests rather
than on the appropriateness of the
educational program . . . . There seems to
be little doubt that Alexander would have
made less progress under the [district's]
program, but Rowley precludes our taking that
factor into account so long as the public
school alternative confers some educational
benefit.
Id. at 87 (citation omitted).
This case presents the same situation. Placement at
the MSB was not required under Rowley, and it conflicts with the
statute. Accordingly, because the order of the district court
affirming the Appeals Panel gave "due weight" to its rulings as
we have explained that concept and because it otherwise properly
comports with both the appropriateness and the least restrictive
environment requirements, it must be affirmed.0
0
We do not reach this result without misgivings. We are acutely
sensitive to the factors that so strongly motivated the hearing
officer and so seriously trouble Scott's parents, namely the need
for Scott to associate with similarly handicapped peers who are
succeeding and who might therefore serve as role models and give
him confidence that he too can succeed. We acknowledge the
importance of this approach (and this goal). A placement at the
MSB would apparently satisfy this need but would be attended by
certain disadvantages, such as the lack of contact with non-
handicapped peers, which IDEA elevates to legal relevance. We
therefore emphasize the need for public school officials to
devise means to reconcile these conflicting but compelling
interests.
35
VI. COMPENSATORY EDUCATION
On cross-appeal, the school district contests the
hearing officer's award of six months of compensatory education
to remedy its alleged failure to provide Scott with an
appropriate program during the 1991-92 year. Both the panel and
the district court affirmed this award. For several
independently sufficient reasons, we reverse the order of
compensatory education.0
IDEA requires school districts to provide disabled
children with free, appropriate education until they reach the
age of twenty-one. See 20 U.S.C. § 1412(2)(B) (1990). An award
of compensatory education extends the disabled student's
entitlement to the free appropriate education beyond age twenty-
one to compensate for deprivations of that right before the
student turned twenty-one. In Lester H. v. Gilhool, 916 F.2d
865, 872 (3d Cir. 1990), cert. denied, 499 U.S. 923, 111 S. Ct.
1317 (1991), we recognized that adults (i.e., individuals over
twenty-one) have a remedy for deprivations of their right to a
0
At the threshold, we note that this argument may have been
waived. The parents apparently did not contest the appropriate-
ness of the 1991-92 IEP at the time it was offered. Indeed, they
seemed to invoke the alleged inappropriateness of the 1991-92 IEP
only to help them prove that the 1992-93 IEP, which they argued
was nearly identical, was inappropriate. Because appropriateness
is judged prospectively, see Furhmann, 993 F.2d at 1040, and
discussion supra at 30-32, we have declined the parents'
invitation to play "Monday morning quarterback" by judging the
1991-92 IEP in hindsight. Although we do not construe the
parents' failure to press their objections to the IEP when it was
offered as a waiver, it casts significant doubt on their
contention that the IEP was legally inappropriate since it
suggests that the parents were also unaware prospectively that
the 1991-92 IEP was unlikely to confer educational benefit.
36
free appropriate education during the period before they reached
age twenty-one. We held that Congress intended compensatory
education to be available to remedy the deprivation of the right
to a free appropriate education. Id. at 872-73 (citing Miener v.
State of Missouri, 800 F.2d 749 (8th Cir. 1986)); 20 U.S.C.
§ 1415 (authorizing courts to award relief they deem
appropriate). Because the Supreme Court has held that tuition
reimbursement is an appropriate remedy under the EHA (IDEA's
predecessor), School Committee of Burlington v. Department of
Education, 471 U.S. 359, 370-71, 105 S. Ct. 1996, 2003 (1985),
and because a student's access to a remedy should not depend on
the parents' ability to "front" the costs of the education and
sue for reimbursement, see Miener, 800 F.2d at 753, courts can,
under appropriate circumstances, order districts to provide free
appropriate education after the student reaches twenty-one.
We have held that compensatory education is available
to respond to situations where a school district flagrantly fails
to comply with the requirements of IDEA. See Lester H., 916 F.2d
865. See also Burlington v. Department of Educ., 736 F.2d 773,
801 (1st Cir. 1984), aff'd, 471 U.S. 359, 105 S. Ct. 2003 (1985)
(upholding reimbursement as equitable remedy available where
rights are violated). Although we do not believe that bad faith
is required, most of the cases awarding compensatory education
involved quite egregious circumstances. This case does not
appear to be in that category. For instance, in Lester H., we
awarded compensatory education where a district took 30 months
after admitting that the in-district placement was inappropriate
37
to locate an appropriate placement despite the availability of at
least six suitable schools within the state. See Lester H., 916
F.2d at 870, 873. In addition to implicating much more culpable
conduct, Lester H. also explicitly reserved the question whether
a court could order compensatory education for periods when a
district attempts in good faith to develop an appropriate
placement. Lester H., 916 F.2d at 873 n.12.
The cases from other circuits which recognize
compensatory education without explicitly requiring a higher
degree of intent by the district have also involved more culpable
conduct. See Burr v. Ambach, 863 F.2d 1071, 1073 (2d Cir. 1988)
(awarding compensatory education where state institution
disqualified a student because of its purported inability to
accommodate his multiple handicaps without mentioning or
considering placement in an extant special program for multiple
handicapped students); Jefferson County Bd. of Educ. v. Breen,
853 F.2d 854, 857-58 (11th Cir. 1988) (awarding compensatory
education to deter states from unnecessarily prolonging
litigation); Miener v. State of Mo., 800 F.2d 749 (8th Cir. 1986)
(reversing denial of compensatory education for a child who spent
three years in mental health ward of a state hospital after
district failed to provide any educational services
notwithstanding its own evaluation recommending such services).
At least one other circuit has explicitly made a "gross"
violation of IDEA a prerequisite to an award of compensatory
education. See Garro v. State of Conn., 23 F.3d 734 (2d Cir.
1994); Mrs. C. v. Wheaton, 916 F.2d 69, 75 (2d Cir. 1990)
38
(requiring a gross violation and defining such as instances of
undue delay in holding hearings or taking advantage of mental
infirmity to deny a placement).
We find the Second Circuit's approach generally
persuasive. Although generally speaking we believe that a
plaintiff seeking compensatory education must prove a gross or
prolonged deprivation of the right to a free appropriate
education, the facts of this case patently do not approach this
situation, and we therefore need not precisely define the
standard. Two things are clear, however. First, it is
necessary, but not sufficient, to demonstrate that some IEP was
actually inappropriate. Second, bad faith is not required.
In this case, there can be no award of compensatory
education because the record does not contain any evidence
pertaining to the inappropriateness of the 1991-92 IEP, the
program serving as the basis for the award. The only evidence
bears on Scott's lack of progress. But as we have explained,
appropriateness involves only a prospective evaluation of the
IEP, not an after-the-fact measurement of the student's success
under the plan.
Even if there were some record on the appropriateness
of the 1991-92 IEP, the compensatory education award would still
be erroneous since there is simply no indication of any gross or
prolonged deprivation by the district. The district's ignorance
of the parent's dissatisfaction with the 1991-92 IEP (due to
their failure to contest that program) precludes a finding that
39
any deprivation was flagrantly prolonged.0 Since the record does
not reflect the district's awareness of the inappropriateness of
the 1991-92 IEP, this case is unlike Lester H. And once the
district was apprised of the arguable inappropriateness of the
1992-93 plan, it did not delay in seeking to resolve the dispute.
Thus, under the circumstances of this case, it simply cannot be
said that the district deprived Scott of an appropriate
placement, delayed for any inordinate period of time in
addressing any disputes over the program, or in any other way
grossly disregarded its obligation to provide Scott with an
appropriate educational program.
In any event, there was no violation shown here, since
the 1991-92 IEP was not challenged and was therefore
presumptively appropriate. We must therefore reverse the
district court's order insofar as it awarded six months of
compensatory education for the purported inappropriateness of the
1991-92 IEP.
VII. CONCLUSION
For the foregoing reasons, we will affirm the order of
the district court insofar as it upheld the denial of the
0
Although the fact that the appropriateness of the 1991-92 IEP
was not properly challenged renders any further analysis of the
school district's culpability unnecessary, we note that the
district court appeared to misapprehend the standard. The
district court seemed satisfied that the parents' challenge to
the 1992-93 IEP made the school district aware of the alleged
deprivation occurring during 1991-92. We emphasize, however,
that the 1991-92 IEP would have to have been contested at the
proper time before a court even considers whether the district's
failure to remedy the allegedly inappropriate IEP was prolonged.
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residential placement, but we will reverse the order insofar as
it upheld the award of compensatory education.
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