In the

United States Court of Appeals

For the Seventh Circuit

Nos. 98-2682, 98-2819 & 99-1817

Dale M., by his mother and next friend, Alice M.,

Plaintiffs-Appellees, Cross-Appellants,

v.

Board of Education of Bradley-Bourbonnais

High School District No. 307, et al.,

Defendants-Appellants, Cross-Appellees.

Appeals from the United States District Court

for the Central District of Illinois.

No. 96-2254--Michael P. McCuskey, Judge.

Argued June 7, 2000--Decided January 12, 2001

 Before Posner, Coffey, and Ripple, Circuit Judges.

 Posner, Circuit Judge. The district judge held

that a public school district in Illinois had

violated its duty under the Individuals with

Disabilities Education Act to provide Dale M.

with "a free appropriate public education that

emphasizes special education and related services

designed to meet [disabled children’s] unique

needs," where "related services" include

"transportation, and such developmental,

corrective, and other supportive services

(including . . . psychological services . . .

[and] social work services . . .) as may be

required to assist a child with a disability to

benefit from special education." 20 U.S.C.

sec.sec. 1400(d)(1)(A), 1401(22). Dale became a

student in the district in 1993, when he was 14

years old. He soon became a serious disciplinary

problem. He disrupted classes and was truant. The

following year he was placed in a "therapeutic

day school" designed to deal with disruptive and

truant students, but in his first four months he

attended school only 20 days, though when he did

attend he behaved himself, did the assigned work,

and got good grades. For some time he had been

drinking alcohol to excess and also consuming

marijuana, cocaine, and other illegal drugs, and

in January of 1995 he was hospitalized for

depression and at the same time charged with

residential burglary and theft of a car. He was
placed on probation for these offenses. When he

got out of the hospital he refused to return to

school, but received home instruction until

November, when he was again charged with

residential burglary and this time sent to jail.

He was examined by a psychologist who found that

Dale has no learning disability but instead what

the psychologist called a "conduct disorder,"

along with depression and substance abuse.

 The school district wanted to send Dale back to

the therapeutic day school. Instead, his mother,

with whom he was living (his parents are

divorced), obtained Dale’s release from jail and

placed him in a residential school, the Elan

School, in Maine. She demanded that the school

district pay for Dale’s attending Elan, as

otherwise he would not be getting the free

appropriate public education to which he was

entitled. The school district refused. The Elan

School does not offer psychiatric or other

medical treatment for substance abuse or

depression. As far as we can determine, it’s just

a boarding school for difficult children. Dale

did not like the school, and was excluded from

most school activities because of his belligerent

attitude.

 The mother sought reimbursement of the expense

of Dale’s attending Elan. Her claim was

adjudicated in succession by two hearing officers

appointed by the state. The first ordered the

public school district to pay but the second, the

reviewing officer, reversed the order of the

first. He could find no evidence that Elan

provided a superior educational experience for

Dale to the therapeutic day school, let alone any

treatment for his "conduct disorder" or his

depression and substance abuse; it merely

provided confinement, thus solving the problem of

his truancy. The hearing officer did not think

that the statute required the school district to

pay for confining a truant student.

 The district judge reversed and ordered

reimbursement. The school district has paid

pursuant to the district court’s order, and the

plaintiffs argue that this makes the school

district’s appeal moot, but that is wrong. A

judgment creditor who pays the judgment pending

appeal instead of posting a supersedeas bond

(which would automatically stay collection, see

Fed. R. Civ. P. 62(d)) is entitled to the return

of its money if the decision is reversed, and so

the payment does not moot the appeal unless the

appellant has relinquished his right to seek

repayment if he wins. In re Farrell Lines Co.,

761 F.2d 796 (D.C. Cir. 1985) (per curiam); 11

Charles Alan Wright, Arthur R. Miller & Mary Kay

Kane, Federal Practice and Procedure sec. 2905,
pp. 525-26 (2d ed.1995); cf. United States v.

Hougham, 364 U.S. 310, 312-13 (1960); United

States for Use and Benefit of H & S Industries,

Inc. v. F.D. Rich Co., 525 F.2d 760, 764-65 (7th

Cir. 1975). The school district has not

relinquished that right.

 So we must decide whether the district court’s

decision was correct. As we explained in Morton

Community Unit School Dist. No. 709 v. J.M., 152

F.3d 583, 587-88 (7th Cir. 1998), when the

district judge does not take fresh evidence but

instead bases his review of the hearing officer’s

decision on the record compiled in the

administrative proceedings, he is required to

give "due deference" to that decision. That is,

the fact that he disagrees with the officer is

not enough to justify setting aside the latter’s

order; he must be strongly convinced that the

order is erroneous. See also Board of Education

v. Rowley, 458 U.S. 176, 206 (1982); Patricia P.

v. Board of Education, 203 F.3d 462, 466-67 (7th

Cir. 2000); Linda W. v. Indiana Dept. of

Education, 200 F.3d 504, 506 (7th Cir. 1999);

Board of Education v. Illinois State Board of

Education, 41 F.3d 1162, 1167 (7th Cir. 1994);

Susan N. v. Wilson School District, 70 F.3d 751,

757 (3d Cir. 1995). The hearing officer to whom

the judge is to defer is the second, that is, the

appellate officer, Board of Education v. Illinois

State Board of Education, 184 F.3d 912, 915 (7th

Cir. 1999); Heather S. v. Wisconsin, 125 F.3d

1045, 1053-54 (7th Cir. 1997); Thomas v.

Cincinnati Board of Education, 918 F.2d 618, 624

(6th Cir. 1990), just as, when the National Labor

Relations Board reverses one of its

administrative law judges, the reviewing court

defers to the board, not to the ALJ, e.g.,

Universal Camera Corp. v NLRB, 340 U.S. 474

(1951); Dilling Mechanical Contractors, Inc. v.

NLRB, 107 F.3d 521, 523-24 (7th Cir. 1997); Webco

Industries, Inc. v. NLRB, 217 F.3d 1306, 1311

(10th Cir. 2000), and unlike, for example,

judicial review of benefits determinations in

black lung cases, where the courts defer to the

ALJ’s decision rather than to the decision of the

Benefits Review Board on appeal from the ALJ to

it. E.g., Old Ben Coal Co. v. Prewitt, 755 F.2d

588, 589-90 (7th Cir. 1985).

 But, by further analogy to the rule in judicial

review of Labor Board decisions, Universal Camera

Corp. v NLRB, supra, 340 U.S. at 491-97; Dilling

Mechanical Contractors, Inc. v. NLRB, supra, 107

F.3d at 524, we believe that the reviewing court,

in deciding whether to uphold a reversal by the

second hearing officer of the first hearing

officer’s decision, must give considerable weight

to any credibility determinations made by the

first hearing officer, since the second officer,
exercising as he does an appellate rather than a

trial function, will generally not have been in a

position to second guess those determinations.

See Heather S. v. Wisconsin, supra, 125 F.3d at

1053-54.

 Evidence was presented to the district judge, in

the form of affidavits and other documents

attached to the summary-judgment papers, but

there is no indication in his opinion that he

considered any of it. Cross-motions for summary

judgment are the standard method for presenting a

case to a district court for decision on the

record compiled by the administrative tribunal

that the court is reviewing. Patricia P. v. Board

of Education, supra, 203 F.3d at 466; Heather S.

v. Wisconsin, supra, 125 F.3d at 1052; Hunger v.

Leininger, 15 F.3d 664, 669-70 (7th Cir. 1994);

Kirkpatrick v. Lenoir County Board of Education,

216 F.3d 380, 385 (4th Cir. 2000). The grant of

the plaintiffs’ motion thus implied that the

judge was not considering any evidence not

presented in the administrative proceedings. The

evidence that had been submitted for the first

time in the district court indicated, for

example, that after the decision by the second

hearing officer Dale graduated from Elan. But the

judge said that "Dale is receiving an educational

benefit from Elan" (emphasis added), implying

that Dale was still at the school. This is a

further indication that the judge didn’t consider

any of the new evidence.

 The judge recited the correct, the deferential,

standard of review for the case where no new

evidence is considered (still another indication

that he did not consider the new evidence), but

when he came to actually discuss the second

hearing officer’s decision, he applied an

incorrect standard. He said for example that he

"disagrees with the reviewing officer’s

conclusion that Elan was inappropriate" and "a

preponderance of the evidence shows that Elan is

an appropriate placement for Dale." That is the

language of de novo determination of contested

factual issues. The judge may have been confused

by the language of the statute: "In any action

brought under this paragraph the court shall

receive the records of the 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. sec. 1415(i) (2)(B). When

the court has before it evidence that was not

before the hearing officers, the amount of

deference due the reviewing officer declines,

since the latter’s decision was based on an

incomplete record. But when there either is no

new evidence or the judge for some reason doesn’t
consider it, he owes considerable deference to

the reviewing officer.

 When due deference is given that officer, we

think it plain that his determination that

placement in the Elan school was not the "free

appropriate education" to which the statute

refers should not have been disturbed. It is true

that Dale has psychological problems that

interfered with his obtaining an education, even

though he has no learning disability or

retardation. And the statute refers explicitly to

"psychological services" as one type of "related

services" that the statute may require a school

district to pay for if, without them, the

disabled child--and we do not understand the

school district to be denying that Dale’s

problems add up to a disability within the

meaning of the statute, 20 U.S.C. sec. 1401(3);

34 C.F.R. sec. 300.7; Board of Education v.

Nathan R., 199 F.3d 377, 379 n. 2 (7th Cir.

2000); compare Rodiriecus L. v. Waukegan School

District No. 60, 90 F.3d 249, 254 (7th Cir.

1996)--cannot obtain an education. But the Elan

School does not provide psychological services,

at least to Dale. For him all it provides is

confinement. He was placed in Elan not from any

school in the defendant school district, but from

jail. Elan is a jail substitute. An incorrigible

truant and lawbreaker, Dale does better in every

respect when he is in a custodial setting than

when he lives at home.

 The only difference between the therapeutic day

school in which the school district put him (and

wanted to return him to, despite his history of

truancy) and Elan is that Elan is a boarding

school specializing in anfractuous kids. So at

least the second hearing officer determined, and

the district court was obliged to defer to that

determination, which was both supported by the

evidence and within the presumed superior

competence of the administrative process to

resolve matters of educational policy. Hence Elan

was the "appropriate" placement for Dale, within

the meaning of the statute, only if confinement

is a related service within that meaning, since

obviously it is not an educational service. We

think--and this is a pure legal issue, as to

which we owe no deference to the hearing officer,

Morton Community Unit School District No. 709 v.

J.M., supra, 152 F.3d at 587--that it stretches

the statute too far to classify confinement thus.

 The essential distinction is between services

primarily oriented toward enabling a disabled

child to obtain an education and services

oriented more toward enabling the child to engage

in noneducational activities. The former are

"related services" within the meaning of the
statute, the latter not. Butler v. Evans, No. 99-

3135, 2000 WL 1231053, at *4-*6 (7th Cir. Aug 31,

2000). In our Morton case, for example, the

medical-support services rendered the plaintiff

were for the purpose of enabling him to attend

school. 152 F.3d at 583. In contrast, the purpose

of the "service" that the school district is

being asked to pay for is to keep Dale out of

jail, both directly, because the judge was

willing to release him from jail to Elan, and

indirectly, because Dale is less likely to commit

burglary and other crimes when he is in a

residential facility than when he is living at

home with only his mother to keep an eye on him.

 Another way to put this is that Dale’s problems

are not primarily educational. He has the

intelligence to perform well as a student and no

cognitive defect or disorder such as dyslexia

that prevents him from applying his intelligence

to the acquisition of an education, without

special assistance. His problem is a lack of

proper socialization, as a result of which,

despite his tender age, he has compiled a

significant criminal record. His substance abuse

interferes with his schooling; that is true; but

it interferes with much else besides, such as

ability to conform to the law and avoid jail.

Supposing that the most effective educational

program for Dale would be to take correspondence

courses while confined in a prison, we do not

think his mother would be arguing that the school

district would have to pay the prison authorities

for the expense of incarcerating him. But that is

close to what she is arguing--that since

confinement, among its other benefits to Dale,

will make it easier for him to obtain an

education, the school district is responsible for

the cost of confinement. That, we conclude, goes

too far.

 This is not a case like Kruelle v. New Castle

County School District, 642 F.2d 687 (3d Cir.

1981), where residential placement was necessary

for educational reasons. The case involved a

thirteen year old who had an IQ below 30 and

could not walk, dress, or eat without assistance.

Under stress, he would self-induce vomiting and

choking; inconsistent approaches or environments

would trigger this behavior. For that child, an

education meant training in the basic social

skills of using the toilet, dressing, feeding,

and simple communication. That education required

residential placement, which was therefore a

"necessary predicate for learning" as opposed to

being--a good description of the present case, as

of Burke County Board of Education v. Denton, 895

F.2d 973 (4th Cir. 1990)--a "response to

medical, social or emotional problems that are

segregable from the learning process." 642 F.2d
at 693; cf. Tennessee Dep’t of Mental Health &

Mental Retardation v. Paul B., 88 F.3d 1466 (6th

Cir. 1996); McKenzie v. Smith, 771 F.2d 1527

(D.C. Cir. 1985). Although Teague Independent

School District v. Todd L., 999 F.3d 127, 132

(5th Cir. 1993), could be read to leave open the

possibility that "twenty-four hour supervision in

a locked unit" might be a related service, the

court pointedly remarked that the "focus" of the

highly restrictive facility that Todd’s parents

preferred "was on behavior management," not

education.

 No other issues need be discussed. The judgment

in favor of the plaintiffs, and the award of

attorneys’ fees to them, are reversed with

directions to enter judgment for the defendants.

The dismissal of the other counts in the

complaint is affirmed. The motion to dismiss the

school district’s appeal on the ground of

mootness is denied, and the plaintiffs’ crossappeals are denied because they have no merit in

light of our decision of the school district’s

appeal.

Affirmed in Part, Reversed in Part.

 RIPPLE, Circuit Judge, dissenting. While chiding

the district court (unfairly in my view) for not

having given sufficient deference to the

superficial analysis of the Level II hearing

examiner, the majority fails itself to give

adequate deference of a far more fundamental

character--deference to the manifest will of the

Congress that the District must provide support

services that are necessary for the meaningful

delivery of educational services. By holding

that, as a matter of law, the residential program

at Elan does not come within the ambit of the

Act, the majority not only dooms Dale M.’s case

but also sets this circuit on a course different

from that of all the courts that have interpreted

this provision. 

 Recognizing that the nature of support services

necessarily will be varied and, in the case of

some children, broad, every circuit that has

addressed the question has held that the

Congressional mandate requires the provision of a

support service that is "a necessary predicate

for learning," Kruelle v. New Castle County Sch.

Dist., 642 F.2d 687, 693 (3d Cir. 1981), and not

"segregable from the learning process," id. See

Tennessee Dep’t of Mental Health & Mental

Retardation v. Paul B., 88 F.3d 1466, 1471 (6th

Cir. 1996) (stating that districts are not

responsible for residential placement "separable
from the learning process" and citing Kruelle);

Burke County Bd. of Educ. v. Denton, 895 F.2d

973, 980 (4th Cir. 1990) ("Where medical, social

or emotional problems are intertwined with

educational problems, courts recognize that the

local education agency must fund residential

programs . . . .") (citing Kruelle); McKenzie v.

Smith, 771 F.2d 1527, 1533 (D.C. Cir. 1985)

(quoting Kruelle standard). Today, this circuit

substitutes for that test a very different

formulation: Costs are to be disallowed if the

support services are not aimed at a problem that

is "primarily educational." Slip op. at 7. That

the difference between the panel majority’s

formulation and that of our sister circuits is

not just one of semantics but a chasm of

substance is made starkly clear by the analysis

of the Third Circuit in Kruelle. There, it noted

that "basic self-help and social skills such as

training, dressing, feeding and communication"

can be part of the necessary process of

education. Kruelle, 642 F.2d at 693 (internal

quotation marks and citations omitted). 

 Dale M.’s truancy is no doubt complex in its

causation and therefore in the degree of its

interrelatedness with his capacity to cope with

the usual demands of education. We lack the

institutional capacity to conduct an independent

analysis of Dale M.’s educational needs. Indeed,

we previously have been "cautioned that courts

lack the specialized knowledge and experience

necessary to resolve persistent and difficult

questions of educational policy." Board of Educ.

v. Rowley, 458 U.S. 176, 205 (1982) (internal

quotation marks and citations omitted). Notably,

here the District itself considered Dale M.’s

truancy to be related to his educational progress

until the need for a residential placement, and

the attendant expense, became an issue. It was

only at that point that the District took the

position that such a program was beyond it

obligations under the Act. 

 In determining that the Elan program goes "too

far" to be within the coverage of the Act, the

majority takes issue with the characterization of

Dale M. reached by the professional educators

and, indeed, by the administrative tribunals and

the district court. In the majority’s view, he is

a delinquent deserving of punishment, not

education. The majority is entitled to its view;

in deciding this case, however, it must stay

within the record, a record that includes the

conclusions of professional educators who viewed

his situation in a very different light. For

instance, in evaluating the program at Elan, the

majority characterizes the program as one that

simply provides "confinement." Slip op. at 6.

Yet, the record makes clear that the program at
Elan involves three separate components, life

skills, counseling and class work. Reasonable

people can disagree about the effectiveness of

providing a structured environment that demands

contributing labor to a communal living

environment; however, none of us who wear black

robes are in an institutional position to second

guess the Illinois Department of Education that

approved the program as a permissible placement

for Illinois school children. See Butler v.

Evans, 225 F.3d 887, 894 (noting that residential

treatment at a psychiatric hospital could not be

compensable as an educational placement because

it was not an accredited educational

institution); Seattle Sch. Dist., No. 1 v. A.S.,

82 F.3d 1493, 1502 (9th Cir. 1996) (rejecting

school district’s argument that it should not be

responsible for residential placement in part

because residential facility was "an accredited

educational institution under state law"); Clovis

Unified Sch. Dist. v. California Office of Admin.

Hearings, 903 F.2d 635, 646 (finding that school

district was not financially responsible for

placement because the facility was "not included

as [an] educational placement option[ ] for

handicapped pupils in that state"). 

 In sum, I must conclude that the court has

improvidently and erroneously parted company with

the other circuits that have defined when a

residential placement is permissible. In doing

so, it has set the courts of this circuit on a

course at odds with the course set throughout the

United States for the provision of support

services under the Act. It has compounded that

error by substituting its own view for that of

professional educators as to the needs of Dale M.

and the merits of the Elan program. Accordingly,

I respectfully dissent.