1995 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"Carlisle Area School v. Scott" (1995). 1995 Decisions. Paper 210.

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1 

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. 
2 

 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-
3 

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 
4 

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, 
5 

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 

 

0The 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. 
6 

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). 
7 

 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 
8 

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. 
9 

 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.
10 

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 
11 

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 
12 

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 
13 

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. 
14 

 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 

 

0We 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. 
15 

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 . . . 

 

0Obviously, 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.
16 

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 nontestimonial, 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. 
17 

 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). 
18 

 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 
19 

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 

 

0We 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, although district courts should normally defer to the Board's decisions, 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). 
20 

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. 
21 

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 

 

0The 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 
22 

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. 
23 

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 wellsupported testimony credited by the hearing officer. But the 

record evidence did not unequivocally support the hearing 
24 

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 
25 

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 environment 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 nonrestrictive 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 
26 

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 

 

0Although the district court did accord the decision of the 

Appeals Panel "considerable deference," its opinion also evidences an independent review of the record. See Dist. Ct. Op. at 7, 

11. 
27 

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 
28 

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 educational 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 
29 

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. 
30 

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 
31 

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 
32 

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 
33 

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 
34 

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, 
35 

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

 

0We 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 nonhandicapped 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. 
36 

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 twentyone 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 

 

0At the threshold, we note that this argument may have been 

waived. The parents apparently did not contest the appropriateness 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. 
37 

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 
38 

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) 
39 

(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 
40 

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 

 

0Although 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. 
41 

residential placement, but we will reverse the order insofar as 

it upheld the award of compensatory education.