Carlisle Area School v. Scott P. Ex Rel. Bess P.

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Precedential or Non-Precedential: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

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995

Recommended Citation
"Carlisle Area School v. Scott" (1995). 1995 Decisions. Paper 210.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/210

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
 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.

40
residential placement, but we will reverse the order insofar as

it upheld the award of compensatory education.

41