                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-8-1995

Carlisle Area School v. Scott
Precedential or Non-Precedential:

Docket 94-7520




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                     UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                           __________________

                        NOS. 94-7520 and 94-7539
                           __________________

                          CARLISLE AREA SCHOOL

                                   v.

                SCOTT P., BY AND THROUGH HIS GUARDIANS,
                      BESS P. AND RICHARD E. P.,

                             Appellant in No. 94-7520

                     CARLISLE AREA SCHOOL DISTRICT,

                             Appellant in No. 94-7539

                                   v.

                SCOTT P., BY AND THROUGH HIS GUARDIANS,
                       BESS P. AND RICHARD E. P.

                    _______________________________

            On Appeal From the United States District Court
                For the Middle District of Pennsylvania
                      (D.C. Civ. No. 93-cv-00458)
                    _______________________________

                         Argued: March 10, 1995

                  Before: BECKER, SCIRICA, and WOOD,0
                            Circuit Judges.

                        (Filed:   August 8, 1995)


                            DENNIS C. McANDREWS, ESQUIRE (ARGUED)
                            315 Upper Gulph Road
                            Wayne, PA 19087



0
    *.    The Honorable Harlington Wood, Jr., United States Circuit
         Judge for the Seventh Circuit, sitting by designation.


                                    1
                               Attorney for Scott P., by and through
his
                               Guardian, Bess P. and Richard E. P.



                               FRANK P. CLARK, ESQUIRE (ARGUED)
                               James, Smith & Durkin
                               20 Valley Road
                               P.O. Box 650
                               Hershey, PA 17033

                               Attorney for Carlisle Area School
                               District

                   _______________________________

                         OPINION OF THE COURT
                   _______________________________



BECKER, Circuit Judge.
           This    case    arises        under   the      Individuals    with

Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1485 (1990).

The   underlying   administrative    proceeding     against    the   Carlisle

Area School District was commenced by Scott P., a disabled twenty

year old, through his parents, Richard P. and Bess P. on the

grounds that the school district had not fulfilled its statutory
obligations to Scott under IDEA.            The hearing officer at the

local   educational   level     granted    the   relief    requested,   i.e.,

residential placement, and six months' compensatory education (to

extend beyond Scott's 21st birthday.)            An appeals panel at the

state education agency level reversed the residential placement

order but affirmed the award of compensatory education.                   The

school district appealed this decision to the District Court for

the   Middle   District   of   Pennsylvania,     and   the   parents    cross-



                                     2
appealed.     The     district   court      affirmed    the    decision     of   the

appeals panel.        The parents appeal the denial of residential

placement.    The school district appeals the award of compensatory

education.

            The    appeal    presents       several    questions     of    special

education law of first impression in this Circuit.                    First, we

must address the parents' contention that the administrative and

judicial proceedings were procedurally defective because of an

alleged     violation       of   IDEA's      efficiency-oriented          finality

requirements stemming from the district court's two remands to

the appeals panel for clarification.            Although the parents assail

the fact that the district court twice remanded the case to the

appeals panel, we hold that these remands did not violate IDEA's

finality requirements since they advanced rather than impeded the

goal of safeguarding access to meaningful judicial review.

            Second, the appeal requires us to decide the proper

scope of review to be used by a state appeals panel reviewing a

local hearing officer's decision, and the proper scope of review

by the district court in reviewing a ruling of a state appeals

panel.    We conclude that the appeals panel's review is plenary

except that it is required to defer to the hearing officer's

credibility       determinations     unless     non-testimonial,          extrinsic

evidence in the record would justify a contrary conclusion or

unless the record read in its entirety would compel a contrary

conclusion.         The   district    court     may    reach    an   independent

decision, except that it must accord the decision of the state

agency "due weight" in its consideration.               In a related vein, we


                                        3
also address the parents' claim that the appeals panel and the

district     court      misallocated           the     burden          of     proof      on    the

appropriateness        of    the        proffered      Individualized               Educational

Program ("IEP").         We conclude that, while school districts bear

the burden of proving the appropriateness of the educational

plans     they     proffer,       they     are       not     required          to      prove   the

inappropriateness of any competing plans advocated by parents.

            Next, we consider whether the appeals panel applied the

correct     standard        in     reviewing         the      order         for     residential

education.       As   the   district       court       correctly            recognized,        IDEA

requires a placement calculated to confer only some educational

benefit (not an optimal education), and also that the program be

delivered in the least restrictive environment.                             On the developed

record,    the     district       court    did       not     err    in      concluding         that

residential      placement        was    not       proper,    and       thus      it    correctly

affirmed     the      appeals      panel's          reversal       of       the     residential

placement order.

            Finally, we must determine the appropriate standard for

the award of compensatory education and the correctness of the

award in this case.              Compensatory education effectively extends

the     disabled      student's         entitlement          to    a     free       appropriate

education beyond the normal cutoff point, which occurs when the

child reaches age 21.            We conclude that the award of compensatory

education was improper here because there was no record evidence

of any violation during the year purporting to serve as the basis

for the award, and certainly no gross or prolonged deprivation,




                                               4
which    other    courts     have    required    as     a     precondition     to    a

compensatory education award.



                      I. FACTS AND PROCEDURAL HISTORY

           Scott P., who was born on February 12, 1973, sustained

serious brain injuries resulting in cortical blindness in a 1980

swimming pool accident.0            Prior to the accident, Scott attended

regular kindergarten and first grade, but has been enrolled in

various special educational programs since that time.

           During the 1991-92 school year, Scott's parents and the

school    district    were     unable    to     agree       upon    an   appropriate

educational program for the 1992-93 year.                    The plan offered by

the   school     district   would     have   enrolled       Scott   in   a   physical

support class at the Mechanicsburg High School operated by the

Capital Area Intermediate Unit ("CAIU").                One other blind student

and two students suffering from head trauma were also assigned to

this class.        Scott's parents contested the appropriateness of

this plan because of its resemblance to the 1991-92 IEP, under

which they contended Scott had not progressed.

           The parents thereupon took Scott to the A.I. duPont

Institute, which conducted an evaluation of Scott's needs.                          The

duPont Institute recommended that Scott be placed in an intensive


0
The accident also caused light spastic hemiplegia, irritable
bowel syndrome, gastroesophageal reflex, von Willebrandt's
disease,   temporomandibular  joint   dysfunction,  status  post
cholecystectomy, status post ventriculoperitoneal shunt, and
vocal chord weakness.   Additionally, Scott has been susceptible
to depression, migraine headaches, recurrent sinus and strep
infections, gastrointestinal problems and hepatitis C.


                                         5
residential program at the Maryland School for the Blind ("MSB")

so that he could attain greater independence.                       In light of this

recommendation,          and    given    Scott's        failure     to     progress       in

preceding       years,     Scott's      family     and     his     private       evaluator

submitted that he needed (and that the IEP should provide) the

specialized educational placement for blind students provided at

MSB.     In September, 1992, Scott's family enrolled him in MSB;

they     also     requested       the    statutorily-provided             due     process

proceedings      in   order      to   contest     the     educational       program     the

school    district       had    proposed    for    Scott.          At   issue     was   the

district's       obligation      to     reimburse       Scott's     parents       for   his

education at MSB.

            Due    process       hearings       were    conducted       before    a    state

hearing officer, Dr. Joseph French, on December 3, 15, and 17,

1992.    Based on documentary evidence and the testimony of various

experts    and    teachers,       Dr.    French        filed   a   report     and     order

directing the school district to develop an IEP for Scott that

would provide academic, social, and vocational instruction with

blind peers.          The order also specified that such instruction

continue beyond normal school hours.                     The effect of this order

was to require that the school district provide (i.e., pay for)

residential programming for Scott at the MSB, as neither the

District nor the CAIU could accommodate such an IEP in their

existing programs.             Dr. French also ordered that Scott receive

six months of education beyond his 21st birthday to "compensat[e]

for the first half of the current [1992-93] school year."                             Op. at

9 (citations omitted).


                                            6
            The school district filed exceptions to Dr. French's

decision.        On March 3, 1993, a Pennsylvania Special Education

Appeals Panel, Anne Hartwig presiding, issued a decision which

acknowledged the inadequacy of the 1992-93 IEP, and ordered more

instruction       with    blind    peers,        but     reversed     the    order        of

residential placement.            Although the panel recited that it had

given "due deference" to the hearing officer's findings of fact,

it rejected the finding that Scott required programming beyond

normal school hours on the grounds that the record evidence taken

as a whole did not support the conclusion that Scott required a

residential      placement    in    order      to   provide       programming      beyond

normal school hours.          However, the panel affirmed the award of

compensatory education.

            On April 2, 1993, the school district appealed the

decision    of    the    appeals   panel       by   filing    a    complaint       in   the

District Court for the Middle District of Pennsylvania alleging

that   "the      panel   erroneously       ordered       changes     to     Scott       P.'s

Individualized Educational Program that are in conflict with the

narrative     discussion      in    the        panel's     decision."          A    brief

evidentiary hearing was conducted on January 24, 1994, at which

the District Court heard additional evidence concerning Scott's

program at MSB.          On March 30, 1994, the district court, which

found the appeals panel decision confusing, ordered that the case

be "remanded to the Pennsylvania Special Education Appeals Panel

for clarification . . . ."

            On April 27, 1994, Hartwig delivered a clarification

for the appeals panel.        The district court was still dissatisfied


                                           7
with this "clarification," which purported to find the 1992-93

IEP appropriate even though the panel had ordered modifications

to the program in its original opinion; moreover, in justifying

its award of compensatory education, the panel had declared the

1991-92 IEP inappropriate even though the appropriateness of that

program had not been challenged and had not served as the basis

of the hearing officer's award.                         The district court therefore

remanded      this       case        to     the       appeals         panel     for       another

clarification.           On     July       6,     1994,       Hartwig    issued       a    second

"clarification."          The district court, while commenting that the

"renderings       of    the    Appeals          Panel      remain     somewhat   confusing,"

stated     that    it    was        according         the     appeals    panel's       decision

"considerable       deference"            and    affirmed       its    order.    The      parents

appeal the denial of the residential placement; the district

appeals the award of compensatory education.



                                          II. FINALITY

              The parents make a claim of procedural defect based on

regulations under IDEA which require that the hearing officer

issue a final order within 45 days of the parents' request for a

hearing and that the appeals panel's decision must be issued

within   30    days      of     the       request       for    an     appeal.      20      U.S.C.

§ 1415(e)(1); 34 C.F.R. §300.512.                          The parents allege that the

district court violated their procedural rights under IDEA by

twice    remanding            the     action          to      the     appeals     panel       for

clarification.          We disagree.




                                                  8
            In Muth v. Central Bucks School District, 839 F.2d at

124-26 (3d Cir. 1988), rev'd on other grounds, 491 U.S. 223, 109

S. Ct. 2397 (1989), we specifically prohibited the use of remands

to   administrative    hearing    officers    for    further      proceedings.

Muth, however, dealt with a remand by the secretary of the state

agency to the appeals panel, not a remand by a judge.                Moreover,

Muth rested on the rationale that remands to the administrative

hearing officer obstructed the party's access to judicial review.

To prohibit the court from remanding for clarification would

impair the court's ability to review the decision fairly and

undermine the very policies animating Muth.            The fact that these

particular remands did not aid the court in disposing of this

case does not invalidate the remands.              Thus, while the statute

clearly   proscribes    remands   within     the    state's     administrative

system, we see no basis for prohibiting judicial remands.



                         III. STANDARD OF REVIEW

                            A. Introduction

            A good deal of the briefing and argument in this appeal

has focused on the standard of review.              This attention results

from the fact that three applicable levels of review are at issue

-- our review of the district court's order; the district court's

review of the state appeals panel's decision; and the appeals

panel's review of the hearing officer's decision.               We, of course,

exercise plenary review over the district court's conclusions of

law and review its findings of fact for clear error.                Wexler v.
Westfield   Bd.   of   Educ.,   784   F.2d   176,   181   (3d    Cir.),   cert.


                                      9
denied, 479 U.S. 825, 107 S. Ct. 99 (1986).                           Because the parents

here allege that the district court failed to observe its own

proper scope of review, we must determine whether the district

court    erred    in    its    interpretation           or    application         of     the   law

governing      the     administrative        review         process,       a    question       over

which    we    exercise       plenary      review.           Louis    W.       Epstein    Family

Partnership v. KMart Corp., 13 F.3d 762, 765-66 (3d Cir. 1994).

              The parents' burden of proof and finality arguments

also hinge on legal interpretations, and are thus subject to

plenary       review.         Id.          We        review    the     district          court's

determination of the 1992-93 IEP's appropriateness, a factual

question, see Association for Community Living v. Romer, 992 F.2d

1040, 1044 (10th Cir. 1993); Hampton School Dist. v. Dobrowolski,

976   F.2d    48,    52   (1st      Cir.    1992),       under    a    clearly         erroneous

standard, Hassine v. Jeffes, 846 F.2d 169, 174 (3d Cir. 1988),

while we exercise plenary review over the legal standard relied

upon to evaluate the IEP and to approve the award of compensatory

education.       Wexler, 784 F.2d at 181.

              B. Discussion

              The parents' threshold argument is that the district

court erred when, despite the fact that the state appeals panel

did not properly defer to the findings and recommendations of the

hearing officer, it affirmed the panel's order.                                   As we have

noted,    the    administrative            regime      at     issue    here      creates       two

questions      pertaining       to    the       appropriate      standard         of     review.

First, we must determine what degree of deference the appeals

panel owes the hearing officer.                        Second, we must decide the


                                                10
degree of deference owed by a district court reviewing an appeals

panel's reversal of the hearing officer, and we must determine

whether     the     appeals       panel    deserves         less    deference            when     it

contravenes the hearing officer's factual findings.



1. The Statutory Framework.

              IDEA requires that states receiving federal funds for

education         must    provide       every        disabled     child       with       a     "free

appropriate public education."                  20 U.S.C. § 1412(1) (1990).                      The

core of this entitlement is provided by the IEP, the package of

special educational and related services designed to meet the

unique    needs      of    the    disabled       child.           See    Polk      v.        Central

Susquehanna Intermediate Unit 16, 853 F.2d 171, 173 (3d Cir.

1988),    cert.      denied,      488    U.S.    1030,      109    S.    Ct.       738       (1989).

Regulations promulgated under IDEA entitle parents dissatisfied

with their child's IEP to "an impartial due process hearing."                                     20

U.S.C. §1415(b); 34 C.F.R. § 300.506-512.                               States may choose

either a one-or a two-tier administrative system.                               Pennsylvania

has a two-tier system in which the initial hearing occurs at the

local    educational         agency      level       followed      by    an    "independent"

review of that hearing at the state educational agency level.                                     20

U.S.C.    §        1415(c)       (1990).    Federal          regulation            §     300.510,

promulgated under § 1415(c), provides that an "impartial" officer

is to conduct the review and that such officer should make an

"independent decision."               See 34 C.F.R. §300.510 (1993).
              A    party     aggrieved      by        a   final    order      of       the     state

authorities may appeal to federal court.                        Section 1415(e) of IDEA


                                                11
provides that district courts "shall receive the records of the

[state]       administrative       proceedings,             shall      hear         additional

evidence at the request of a party, and, basing its decision on

the preponderance of the evidence, shall grant such relief as the

court determines is appropriate."                    20 U.S.C. § 1415(e) (1990).

Although this provision could be read to permit the district

court to review the evidence de novo, disregarding the findings

and rulings of the state agencies, the Supreme Court has required

that    federal       district    courts         afford    "due     weight"          to   state

administrative proceedings in evaluating claims under IDEA.                                 See

Board of Educ. v. Rowley, 458 U.S. 176, 206, 102 S. Ct. 3034,

3051 (1982).          As we explained in Oberti v. Board of Education,

995    F.2d    1204,     1219    (3d     Cir.     1993),        district        courts      have

discretion      to     determine       how    much       deference     to       accord      the

administrative         proceedings,       and     although       the   district           courts

"must consider the administrative findings of fact, [they are]

free to accept or reject them." Id. at 1219 (quoting Jefferson

County Bd. of Educ. v. Breen, 853 F.2d 853, 857 (11th Cir.

1988)).       But if the district court chooses to depart from the

agency's      ruling,    it     should    provide        some    explanation          for    its

departure.          See Doyle v. Arlington County School Bd., 953 F.2d
100, 105 (4th Cir. 1991).

              The ramifications of Rowley's injunction to give "due

weight"       are     unclear    where       a    state     creates         a       two-tiered

administrative         regime    and     each     tier    arrives      at       a    different

conclusion.          The circuits have split on the question whether

federal district courts acting pursuant to Rowley should accord


                                             12
due weight to the trial level hearing officer or to the appeals

panel where the two bodies differ and where the appeals panel may

not have properly deferred to the hearing officer's findings.                   In

Thomas v. Cincinnati Board of Education, the Court of Appeals for

the Sixth Circuit held that the "only logical position" was to

defer to the appeals panel, the final decision-maker of the state

agency, over the hearing officer.                 918 F.2d 618, 624 (6th Cir.

1990).     See also Karl v. Board of Education of Geneseo County

School Dist., 736 F.2d 873, 877 (2d Cir. 1984) ("We believe

Rowley requires that federal courts defer to the final decision

of the state authorities, and that deference may not be eschewed

merely    because     a   decision    is   not    unanimous   or   the   reviewing

authority disagrees with the hearing officer.").                     In contrast,

the Fourth Circuit has held that the district court erred in

deferring    to   a   reviewing      officer      who,   reversing   the   hearing

officer, discredited a witness he had not seen or heard testify.

See Doyle, 953 F.2d at 100.

            At the threshold, we must decide whether the appeals

panel failed to defer to the hearing officer, for if we find that

the appeals panel adequately deferred to the hearing officer,

then the district court plainly complied with Rowley in according
"considerable       deference"       to    the     appeals    panel's    decision.

Because the provisions of IDEA that accommodate the two-tier due

process system do not specify the proper standard, see Perry A.

Zirkel,    The    Standard    of     Review      Applicable   to   Pennsylvania's
Special Education Appeals Panel, 3                 WIDENER J. PUBLIC L. 871, 876

(1994), we must first decide what that standard is.


                                           13
              a. Appeals Panel Review of the Hearing Officer's
                 Decision


              Section    1415(c) describes the state agency's review as

follows:      "If the [initial impartial] hearing ... is conducted by

a   local   educational      agency   ...,       any    party    aggrieved       by    the

findings and decision rendered in such a hearing may appeal to

the   State    Education     Agency   which      shall        conduct    an    impartial

review of such hearing.        The officer conducting such review shall

make an independent decision upon completion of such review." 20

U.S.C. §1415(c) (emphasis added).                 The regulation interpreting

this provision further provides that the reviewing officer may

"[s]eek additional evidence if necessary," and may "[a]fford the

parties an opportunity for oral or written argument, or both, at

the   discretion        of   the   reviewing         official."         34    C.F.R.     §

300.510(b)(3)-(4)        (1993)    (emphasis           added).          Although      this

language does not explicitly define the appeals panel's scope of

review, it suggests a non-deferential standard.0                        The fact that

the   statute    contemplates      that    the    appeals       body    will    make    an
"independent     decision"     suggests        not     that    the     appellate      body

should defer but that it should reach a decision based on its own
0
We need not address the question whether federal law pre-empts
state laws which specify the appeals panel's standard of review
since the Pennsylvania statute creating the apparatus for the
two-tiered due process hearing is silent on this issue.        The
Pennsylvania statute provides:      "The decision of the impartial
hearing officer may be appealed to a panel of three appellate
hearing officers. The panel's decision may be appealed further
to a court of competent jurisdiction. In notifying the parties
of its decision, the panel shall indicate the courts to which an
appeal may be taken."         22 PA. CODE § 1464(m) (1992).    The
Pennsylvania courts have not consistently interpreted this
statute to impose a definitive standard of review. See Zirkel, 3
WIDENER J. PUBLIC L. at 878-82.


                                          14
evaluation of the evidence, "independent" of the findings of the

hearing officer. The language of the regulation, see 34 C.F.R.

§ 300.510(b)(3) (1993), bolsters this interpretation, since the

receipt of additional evidence necessarily entails the weighing

of the new evidence against the evidence presented in the first

(administrative) hearing.

           As a matter of general appellate principle, however,

appeals panels ordinarily defer to the trial presider's factual

findings   based     on   credibility   judgments    about   the    witnesses

presented at the trial or hearing.            For example, Rule 52(a) of

the Federal Rules of Civil Procedure states:           "Findings of fact,

whether based on oral or documentary evidence, shall not be set

aside unless clearly erroneous, and due regard shall be given to

the opportunity of the trial court to judge the credibility of

the witnesses."       Fed. R. Civ. P. 52(a).        See also Anderson v.

Bessemer City, 470 U.S. 564, 575, 105 S. Ct. 1504, 1512 (1985)

(requiring even greater deference to the trial court's findings

regarding the credibility of witnesses than to the court's other

fact   findings).0    But   deference    to   a   factfinder's     particular

credibility judgment does not necessarily result in deference to

all of the findings of fact based on that judgment.

           While review of credibility-based factual findings is

limited, it is not meaningless.         "Where . . . the findings . . .

0
Obviously, conclusions of law receive plenary review.        See,
e.g., Louis W. Epstein Family Partnership v. KMart Corp., 13 F.3d
762, 765-66 (3d Cir. 1994) (applying plenary review to choice,
interpretation and application of the law to the historical
facts). Moreover, a trial court cannot shield a legal error from
review simply by labelling it as a factual finding. Id.


                                    15
are not supported by the record, and indeed, the record supports

contrary findings, we must reverse."                    Ali v. Gibson, 631 F.2d

1126, 1129 (3d Cir. 1980), cert. denied, 449 U.S. 1129 (1981);

see     also    Anderson,        470     U.S.    at   575,    105   S.Ct.   at    1512

(restricting deference to cases where credibility evidence is not

contradicted by "extrinsic evidence"); Cooper v. Tard, 855 F.2d

125,     126   (3d       Cir.   1988)     (limiting    appellate     review      to   an

assessment of whether there is enough evidence on the record to

support such credibility findings).

               We thus embrace the Fourth Circuit's approach in Doyle

v. Arlington County School Board, 953 F.2d at 105, to the extent

that that decision was premised on this specific principle, that

credibility-based             findings     deserve      deference       unless    non-

testimonial, extrinsic evidence in the record would justify a

contrary conclusion or unless the record read in its entirety

would    compel      a    contrary     conclusion.      But    beyond    this    rather

narrow     class         of   record-supported,       credibility-based         factual

findings, we think that, to give the statute's language about

"independent" decisions effect, the appeals panel must have much

more leeway in reviewing other non-credibility based findings of

the hearing officer.            See Zirkel, 3 WIDENER J. PUBLIC L. at 892.            We

will therefore defer to the appeals panel rather than the hearing

officer in most circumstances, bringing us closer to the approach

taken by the Second and Sixth Circuits in Karl v. Board of

Education of Geneseo and Thomas v. Cincinnati Board of Education,

respectively.        See supra at p. 11-12.




                                            16
           Our approach is also consistent with administrative law

principles, which permit an agency or board freely to accept or

reject an ALJ's findings and conclusions of law.                 Section 557(b)

of the Administrative Procedures Act (APA) provides:                      "On appeal

from or review of the initial decision, the agency has all the

powers which it would have in making the initial decision except

as it may limit the issues on notice or by rule."                          5 U.S.C.

§ 557(b) (1995). Courts review the board's decisions, not those

of the ALJ's. Starrett v. Special Counsel, 792 F.2d 1246, 1252

(4th Cir. 1986) (citing 3 K. Davis Administrative Law Treatise, §

17.16 (2d ed. 1980)).

           Moreover,    limiting      the    appeals   panel's       deference    to

those     situations     involving          record-supported          credibility

determinations tracks the approach taken by other administrative

regimes, such as that created by the National Labor Relations

Act. 29 U.S.C. § 151 et seq. (1973 and Supp. 1995); see Stein

Seal Co. v. NLRB, 605 F.2d 703 (3d Cir. 1979) (holding that the

Board was free to make fact findings contrary to the ALJ's so

long as they are supported by substantial evidence); Local 259,
United Auto., Aerospace and Agr. Implement Workers v. NLRB, 776

F.2d 23 (2d Cir. 1985) (upholding the decision of the Board where

differences   between    ALJ    and    the     board   did    not    result     from

divergence of views as to credibility of testimony concerning

evidentiary   facts     but    instead      resulted   from    differences        in

overall    judgment     as     to     proper     inferences         and     ultimate

determination).




                                       17
             We thus hold that appeals panels reviewing the fact

findings    of    hearing        officers      in     two-tier      schemes   (such      as

Pennsylvania's) exercise plenary review, except that they should

defer to the hearing officer's findings based on credibility

judgments unless the non-testimonial, extrinsic evidence in the

record would justify a contrary conclusion or unless the record

read in its entirety would compel a contrary conclusion.

             b.   District Court Review of the Appeals Panel

             As   we    noted,     see    supra       at     11,    IDEA   empowers     the

district court to hear additional evidence, and directs the court

to base its decision on the preponderance of the evidence.                               We

have interpreted Rowley's mandate to accord "due weight" to the

administrative         proceedings       as    a    requirement       to   consider      --

although not necessarily to accept -- the administrative fact

findings. Oberti, 995 F.2d at 1219.                   The precise question here is

whether    the    district       court    owes        less    consideration        to   the

administrative fact findings when the second tier reversed the

first   tier.         Clearly,    the    district       court's      review   should     be

unaffected    where      the   appeals        panel    owes    no    deference     to the

hearing officer.        Thus, the issue is whether the district court's

review should be any less deferential where the appeals panel

disregarded       a      record-supported,             credibility-based           factual

determination of the hearing officer.

             Given our decision about the appeals panel's scope of

review, we conclude that a district court should still give "due

weight" to the appeals panel's decision when it reverses the

hearing    officer's      conclusions         of    law,     inferences     from    proven


                                              18
facts, and factual findings based on credibility judgments where

non-testimonial, extrinsic evidence justified the appeals panel's

contrary decision.0   In this case, because the appeals panel
0
We assume without deciding that, under IDEA, a district court
should accord somewhat less consideration to an appeals panel
ruling that disregards a hearing officer's credibility judgments
where this standard is not met. We base this assumption on the
standards applicable in other statutory regimes that also involve
a two-level administrative proceeding.      See Chen v. General
Accounting   Office, 821 F.2d 732 (D.C. Cir. 1987) (requiring
administrative board to accord great deference to those findings
of original decision maker that turned on credibility judgments);
Brock v. L.E. Myers Co., High Voltage Div., 818 F.2d 1270 (6th
Cir. 1987) (requiring Occupational Safety and Health Review
Commission to articulate reasons for failing to credit findings
of an ALJ who had a unique opportunity to observe demeanor of
witnesses); Citizens St. Bank v. Federal Deposit Ins. Corp., 718
F.2d 1440 (8th Cir. 1983) (scrutinizing agency's decision where
agency departed from ALJ's finding without reflecting attentive
consideration to ALJ's decision); Haberson v. NLRB, 810 F.2d 977
(10th Cir. 1987) (requiring NLRB to accord ALJ findings due
weight although board is not bound by ALJ findings). Cf. Stein
Seal Co. v. NLRB, 605 F.2d 703 (3d Cir. 1979) (regarding the
ALJ's findings as "merely advisory" where the Board's contrary
findings are supported by substantial evidence).         But see
Starrett v. Special Counsel, 792 F.2d 1246 (4th Cir. 1986)
(allowing Merit Systems Protection Board to accept or reject
ALJ's findings and conclusions of law).       The National Labor
Relations Act caselaw specifically addressing the issue of
judicial review of administrative appeals also suggests that, al-
though district courts should normally defer to the Board's deci-
sions, the courts should be less deferential where the Board
reached a decision contrary to the ALJ's.       See GSX Corp. of
Missouri v. NLRB, 918 F.2d 1351 (8th Cir. 1990) (reviewing
board's findings more critically where board's findings are
contrary to ALJ's); C.E.K. Indus. Mechanical Contractors, Inc. v.
NLRB, 921 F.2d 350 (1st Cir. 1990) (applying "slightly" less
deferential standard to the board where it reaches a conclusion
opposite to the ALJ); Centre Property Management v. NLRB, 807
F.2d 1264 (5th Cir. 1987) (applying "more searching" scrutiny to
board's findings where they conflict with ALJ's); NLRB v. Cooper
Union for Advancement of Science and Art, 783 F.2d 29 (2d Cir.
1986) (applying higher scrutiny to board findings that differ
from ALJ's but only where differences concern evidence that turns
on credibility). But see Glaziers Local Union 558 v. NLRB, 787
F.2d 1406 (10th Cir. 1986) (applying the same standard to the
board whether or not it reached conclusions contrary to the ALJ).


                               19
found   that    the        extrinsic         evidence       in    the     record     supported

conclusions     contrary          to    those       of     the    hearing       officer,      the

district court correctly gave the panel's decision "due weight"

notwithstanding the panel's differences with the hearing officer.

2. The Nature of the Disputed Rulings.

            We turn to the nature of the disputed rulings, for

application of the standard of review turns thereon.                                While this

discussion will propel us to some degree into a discussion of the

merits, treated infra, that cannot be avoided.                             Although Scott's

parents understandably want this court to view the contested

portions   of       the    hearing      officer's          ruling   as     record-supported

credibility judgments that would be shielded from appeals panel

review,    they      are     in    reality        credibility           findings     that     are

contradicted by not insubstantial record evidence.                              With respect

to   the   appeals         panel's      finding           that    the     1992-93      IEP     was

appropriate,         the     parents          claim        that     the     appeals          panel

"effectively        overturned         the    critical       finding       by    the    Hearing

Officer    that       'for    the       last      few      years        [Scott's]      academic

achievement,        as     determined        by     his    teacher,       has    been    (only)

maintained and when measured by standardized tests has continued

to be at the fourth to fifth grade level.'"                         The record, however,

contained ample evidence that Scott had made progress.                                       When

measured       by        teacher-constructed               exams,        Scott's       academic



Because the disputed portions of the hearing officer's opinion
did not find support in the non-testimonial, extrinsic evidence
in the record, however, they were not entitled to deference by
the appeals panel, and we need not decide this issue.


                                               20
achievement had improved. HO Op. at 4.             The record also notes

that Scott had made progress in reading and writing braille. Id.

              In any event, appropriateness is judged prospectively

so that any lack of progress under a particular IEP, assuming

arguendo that there was no progress, does not render that IEP

inappropriate.     See   infra   at   30-32.      However,       even   if    the

observation about progress under the 1991-92 IEP did reflect on

the   legal    appropriateness   of   the   1992-93    IEP,   it   could     not,

standing alone, support the hearing officer's conclusions about

the 1992-93 IEP: additional inferences and conclusions would have

to be drawn.      For example, one would have to assume that Scott's

needs had remained completely unchanged between the years, and

that one could attribute Scott's lack of progress during 1992-93,

for example, to the failure of the 1992-93 program to provide a

service for a need that had manifested itself during the 1991-92

year (prior to the development of the relevant IEP).

              Consequently, the appeals panel would not have needed

to set aside Dr. French's "findings" about the credibility of the

teacher and the mobility specialist who testified that they had

seen no progress in recent years to find that the 1992-93 IEP was

appropriate.     Rather, the appeals panel could have credited their

statements and nevertheless found that the 1992-93 plan passed

muster   because    of   the   additions    to   the   1992-93     program0    or

0
The plaintiffs' argument that the compensatory education award
mandates residential placement depends on the identity of the
1991-92 IEP with the 1992-93 IEP, but there are some important
differences.    The 1992-93 plan provides for psychological
counseling with blind youths, OT/PT monitoring, and transition
planning, three "related services" not supplied in the earlier

                                      21
because of changes in Scott's needs.   Alternatively, the appeals

panel could have concluded that the non-testimonial, extrinsic

evidence in the record evidence did not support the findings.

          While either of these approaches could independently

justify the appeals panel in making a finding different from the

hearing officer, the appeals panel invoked both bases in this

case. The panel carefully distinguished the content of the 1992-

93 IEP from that of the 1991-92 IEP (see 4/27/94 Order at 2),

thus breaking the link between progress made under prior IEPs and

the appropriateness of the 1992-93 IEP.   The panel also evidenced

its searching review of all the record evidence when it stated

that "there was sufficient evidence in the record so as to allow

the officer to find that the District had attempted to provide

Scott with an [appropriate] IEP . . . ." (4/27/94 Order at 2.)

          At all events, the core issue in this case pertains to

the state appeals panel's reversal of the hearing officer's award

of residential education at the MSB.      The parents contend that

the appeals panel "simply rejected Dr. French's critical factual

findings that 'in addition to regular therapy, Scott needs help

from peers with similar problems . . . .      He needs programming

beyond typical school hours to have sufficient intensity to make

additional gains.'"   But here too, the appeals panel did not

plan. The 1992-93 IEP also contains a much more detailed set of
goals/predictions in the "Content" section, and a much more
specific list of "Specially Designed Instruction." Additionally,
the later program reflected more ambitious "Expected Post-School
Outcomes,"   listing,  for   example,  supported   employment  or
sheltered employment where the earlier plan had only stated "will
explore more specific evaluations."   Compare generally, 1992-93
IEP, 582-596a, with 1991-92 IEP, 702a-710a.


                               22
simply reject the testimony relied on by the hearing officer so

much    as    find    that    the     record        did    not    support       the     officer's

conclusion.           In    particular,         the       hearing       officer       relied    on

testimony      that        Scott     needed     his        school       instruction       to    be

reinforced by other activities to find that these reinforcing

activities needed to occur "during other hours of his day," a

phrase he took to require residential placement.                                   The appeals

panel believed, however, "that there was insufficient evidence in

the record" to support the conclusion that those reinforcing

activities had to occur "during other hours of his day."                                  4/27/94

Order at 3.

              The     appeals       panel's         rejection          of   the    residential

placement also resulted from its doubts about the attribution of

Scott's failure to accept his blindness (and its effects on his

progress)      to    the    deficiency         of    peer       contact     afforded      by the

school district's IEP.               See 3/3/93 Order at 4 n.13 ("The record

seems to indicate that this inability or unwillingness by Scott

to accept his handicap may account for his apparent lack of

progress as anticipated by his teachers and parents.                                  The issue,

however, is whether more contact with blind peers is the remedy

or     whether       increased       skills         will        help    Scott      accept      his

handicap.")

              Had the appeals panel found that Scott did not need any

peer    contact      and/or        that   he    did       not    require     any      additional

programming, the appeals panel would have been rejecting well-

supported testimony credited by the hearing officer.                                     But the

record       evidence       did     not   unequivocally             support       the     hearing


                                               23
officer's findings with respect to progress under prior IEP's,

off-hour programming, or the need for more peer contact.                      Because

the record evidence did not support the findings, this is simply

not    a   case   where    the    panel    encroached        on   the   credibility

judgments of the hearing officer, for we agree with the appeals

panel that "the reasons why Scott has not made the anticipated

progress in his educational placement remain unclear."                          More

specifically, it appears that Scott was not attending school for

the full day and missed certain extended periods due to various

illnesses.

               Both the appeals panel and the hearing officer felt

that full implementation of the school district's IEP was impeded

by those factors.         See 3/27/94 Order at 2 ("The panel agreed with

the Hearing Officer that a significant difficulty in evaluating

the appropriateness of the proposed '92 IEP was Scott's failure

to    attend    his   school   program     for   a    full   day.       The   officer

speculated, if Scott did not go home at 1 p.m., he could have

training in daily living skills provided at the school."); HO Op.

at 4.      As a consequence, the testimony that Scott needed more

programming,      even    if     credited,     does   not     compel    residential

placement, especially in light of the 1992-93 IEP's proposal to

provide "full day" programming.

               Neither does Scott's need for peer contact necessarily

require residential placement, since the appeals panel found that
          there was sufficient evidence in the record
          so as to allow the officer to find that the
          District had attempted to provide Scott with
          an IEP that would permit him an opportunity
          to   interact   with   peers.     While   the


                                          24
              opportunity to interact, as provided by the
              District, may not be [sic] have been ideal or
              optimal, nevertheless, the panel concluded
              that the District had acted in a manner that
              would have allowed Scott to reasonably
              benefit from his placement, in this context
              of interaction with peers.

4/27/94     Order     at    2-3.       Aside      from    the   fact      that    evidence

supporting the need for more peer contact was contradicted, to

give such testimony dispositive effect would run afoul of at

least two legal propositions under IDEA (discussed below):                               that

the district need not provide the optimal IEP, and that the

program be provided in the least restrictive educational environ-

ment   appropriate          to   the    needs      of     the   child.       20     U.S.C.

§ 1412(5)(B) (1990).

              The panel correctly stated the law when it wrote:                          "The

Hearing Officer's conclusion that Scott must then be entitled to

a residential placement is incorrect.                    The standard to be applied

in determining the least restrictive alternative is not to find

an optimum placement for Scott but rather to decide whether an

appropriate     educational          placement     can     be   achieved     in    a     non-

restrictive         setting."         See   3/3/93        Op.   at   5.      Under       the

appropriate         legal    framework,        therefore,       even      uncontroverted

testimony that many more hours of programming or that contact

with   many    peers        would    benefit      Scott    would     not    support       the

adoption of a more restrictive residential placement.                            Moreover,

even   if     the    appeals        panel   had    reversed      findings        based    on

uncontradicted testimony, it would not necessarily change the

result in this case.             In light of Oberti, 995 F.2d 1204 (3d Cir.

1993), after considering the administrative findings of fact, the


                                            25
district court was free to reach a different conclusion from its

independent review of the record.

            Thus, the district court could effectively affirm the

panel by independently finding its own facts contrary to those

found by the hearing officer.          Because we are confident that the

district court did independently consider the record, we believe

that it could affirm the appeals panel decision even if the

appeals    panel   had    acted    improperly     in   reversing    the    hearing

officer's    findings.0      The    same    arguments    refute    the    parents'

contention that the district court erred when it affirmed an

appeals panel ruling it conceded to be "somewhat confusing."                   The

district court could effectively affirm the panel, despite its

inability to precisely discern the panel's ratio decidendi, by

making rulings based on its independent review of the record and

the preponderance of evidence.

3.   Conclusion

            Because the contested "findings" of Dr. French (i.e.,

those over which the appeals panel and Dr. French disagree) do

not find unmixed record support, we conclude that the district

court     correctly      accorded     the     appeals    panel      "substantial

consideration," notwithstanding the fact that the panel did not

adopt the hearing officer's credibility-based recommendations.

Moreover,     to      the    extent        that   the     hearing        officer's

recommendations offended other provisions of IDEA, they rested on

0
Although the district court did accord the decision of the
Appeals Panel "considerable deference," its opinion also evidenc-
es an independent review of the record. See Dist. Ct. Op. at 7,
11.


                                       26
an error of law over which the appeals panel exercised plenary

review.     Thus, we need not address the question whether the

"consideration" the district court afforded the appeals panel

would have been appropriate if the panel had in fact encroached

on the limited terrain of credibility judgments falling within

the primary purview of the hearing officer.



                            IV. BURDEN OF PROOF

            The   parents    make    an   interesting    argument       that   the

appeals   panel   erroneously        placed    the   burden    of   proving    the

inappropriateness of the 1992-93 IEP on them.             Although they fail

to identify any specific element(s) of the IEP on which the

school    district   failed     to     demonstrate     appropriateness,        the

parents rely on the panel's reversal of the order of residential

placement as proof that the burden had been improperly shifted.

Contending that the MSB provided better-- and to them the only

adequate--opportunities       for    contact    with   blind    peers    and   for

expanded programming, they reason that it is also the district's

burden to prove the inappropriateness of any other IEP they might

advocate.   We disagree.

            In administrative and judicial proceedings, the school

district bears the burden of proving the appropriateness of the

IEP it has proposed.        Oberti, 995 F.2d at 1219; Fuhrmann v. East
Hanover Bd. of Educ., 993 F.2d 1031, 1035 (3d Cir. 1993) ("[T]he

burden of showing that the placement is 'appropriate' rests with

the school district.").        But that does not mean that the school

district also bears the burden of proving the inappropriateness


                                       27
of any alternative IEP that a student's parents might suggest.

Such   a   requirement        would    not     only    impose      a    very    substantial

burden on the district, but it would also conflict with Rowley

and its progeny to the extent that such a general rule would

effectively necessitate proof that a district's IEPs were the

best rather than simply proof that they conferred some education-

al benefit.

            IDEA's requirement that the placement involve the least

restrictive      educational         environment,           20    U.S.C.   § 1412(5)(B),

further erodes the parent's arguments about the burden of proof.

In   Oberti,     the    school      district         bore    the    burden      of    proving

appropriateness when it advocated a more restrictive placement,

and its teachings are instructive on the question whether it is

the proponent or the school district who bears the burden of

proving    the   necessity       for     a    more    restrictive        placement.          In

Oberti,     we   recognized         "a       strong    presumption         in    favor       of

mainstreaming",        995    F.2d       at    1214,    and       explained     that        this

presumption "would be turned on its head if parents had to prove

that their child was worthy of being included, rather than the

school district having to justify a decision to exclude the child

from the regular classroom."                 Id. at 1219.
            These principles are comparably valid here where the

parents seek a more restrictive environment.                            It simply cannot

be, in light of the clear congressional preference for inclusion,

id. at 1214, that the district bears the burden of proving the

superiority      (not        mere     appropriateness)             of    the    district's

proffered    less      restrictive        setting.           We    therefore         will    not


                                              28
require the district to prove the inappropriateness of the more

restrictive MSB placement.

                            V. RESIDENTIAL PLACEMENT

            The parents argue that the court erred by finding that

the    1992-93    IEP    was    appropriate     when    that     plan   so     closely

resembled    the     1991-92      IEP     which,   they    assert,       the     court

implicitly impugned by affirming the appeals panel's award of

compensatory education. In addition, the parents contend that the

fact that the appeals panel ordered modifications to the 1992-93

IEP (in its first 3/3/92 order) must mean that the panel regarded

the 1992-93 IEP to be inappropriate.                  Specifically at issue is

the    appeals    panel's      reversal   of   that    portion    of    the    hearing

officer's order, premised on the alleged inappropriateness of the

1992-93 plan, which effectively required residential education at

MSB.

            The    principal      question,     however,    even       assuming    the

1992-93 IEP was somehow inappropriate, is whether an award of

residential education was the proper response.                      The statutory

framework imposes dual requirements on school districts.                       On the

one hand, IDEA requires only that school districts provide an

"appropriate" IEP, gauged by whether the IEP is "sufficient to

confer some educational benefit."              Rowley, 458 U.S. at 200, 102

S. Ct. at 3048.         Districts need not provide the optimal level of

services, or even a level that would confer additional benefits,

since the IEP required by IDEA represents only a "basic floor of

opportunity."      Id. at 201, 102 S. Ct. at 3048.               See also Fuhrmann

v. East Hanover Bd. of Educ., 993 F.2d 1031, 1037, 1040 (3d Cir.


                                          29
1993); Kerkam v. Superintendent D.C. Public Schools, 931 F.2d 84,

88   (D.C.    Cir.      1991)     (refusing     to    test    appropriateness          by

comparing disputed IEP with proffered alternatives).                         Moreover,

IDEA also commands the school district officials to construct a

program      in   the     least     restrictive         educational        environment

appropriate       to    the     needs    of    the   child.          See    20   U.S.C.

§ 1412(5)(B) (1990). Residential placement is, by its nature,

considerably       more       restrictive        than       local        extended      day

programming.       See Kerkam, 931 F.2d at 87; G.D. v. Westmoreland

School Dist., 930 F.2d 942, 948 (1st Cir. 1991); Roland M. v.

Concord School Comm., 910 F.2d 983, 992-93 (1st Cir. 1990).

             In   our     view,    the    district        court    did     not   err   in

concluding that the 1992-93 IEP was appropriate in the legally

relevant sense because that program was calculated to confer some

educational benefit on Scott.             Although the parents' brief is not

entirely clear on this point, its attack on the appropriateness

of the 1992-93 IEP appears principally to rely on that plan's

alleged similarity to the 1991-92 IEP, rather than make a more

direct    challenge     to    appropriateness        by    identifying      particular

needs not addressed by the 1992-93 program.                         This reliance is

misplaced, for the alleged similarity of the 1991-92 and the

1992-93 IEP's does not mandate the conclusion that a decision

ordering compensatory education is somehow irreconcilable with

the refusal to order residential placement.                       As we explained in

Fuhrmann v. East Hanover Board of Education, 993 F.2d 1031, 1040
(3d Cir. 1993), "the measure and adequacy of an IEP can only be

determined as of the time it is offered to the student, and not


                                          30
at   some    later    date.       . . .    Neither    the    statute     nor    reason

countenance       'Monday    Morning      Quarterbacking'        in   evaluating   the

appropriateness of a child's placement."                    See also Roland M. v.

Concord     School        Comm.,     910    F.2d      983     (1st     Cir.     1992).

Consequently, Scott's failure to make progress in the 1991-92

IEP, a judgment made retrospectively, does not render either the

1991-92 IEP or the 1992-93 IEP inappropriate. Of course, if a

student had failed to make any progress under an IEP in one year,

we would be hard pressed to understand how the subsequent year's

IEP, if simply a copy of that which failed to produce any gains

in a prior year, could be appropriate.

             Moreover, the parents gloss over the many assumptions

needed to equate the 1991-92 IEP that the appeals panel had found

inappropriate with the status of the 1992-93 IEP.                     In particular,

the parents believe that the two IEP's are virtually identical

although they themselves concede that the 1992-93 IEP included

additional        goals     and     objectives       and    an     arrangement     for

psychological counseling. (appellant's brief at 10).                          See also

supra note 5.         The parents apparently assume that these are

merely formal additions, but that is not so.                     An IEP is a written

document containing a statement of current educational status,

annual goals, short term objectives, a description of the type of

program     and    reasons    for    its    selection,       projected    dates    for

initiation and duration, and some objective criteria by which

instructional objectives can be evaluated.                    34 C.F.R. § 300.346

(1993).     The differences between the 1992-93 IEP and the 1991-92

IEP are not merely formal; they reflect the very essence of an


                                           31
IEP.   As we have explained, the statute requires that school

districts prepare the IEP's based on the student's needs; so long

as the IEP responds to the needs, its ultimate success or failure

cannot retroactively render it inappropriate.

            Importantly, the objectives and services added to the

1992-93 IEP address some of the bases the parents have used to

argue for the residential placement.      For instance, the district

proposed group counseling for blind youths, responding to Scott's

need for more contact with blind peers.       The plan also responded

to the need for extended hour services by providing orientation

and mobility training to Scott and his family in their home,

presumably during non-school hours. (Appellee's brief, n.3).        And

despite the parents' insistence that only the MSB can adequately

educate Scott, the district's IEP addresses each of the program

needs identified by the MSB diagnostic team. (Appellee's brief at

24-27).     Based on this similarity to the MSB plan, the one

endorsed by the parents, a correct application of the prospective

appropriateness inquiry supports the district court's conclusion

that the 1992-93 program was appropriate.

            The parents, however, contend that only the residential

placement recommended by their experts could provide Scott with

the requisite "intensity" of services needed for him to make any

progress.      We   think   this   argument   turns   on   the   alleged

superiority of the MSB program rather than the inappropriateness

of the district's 1992-93 IEP.      We do not denigrate the quality

of the program available at the MSB and acknowledge that Scott

might have benefited more from being in it.      Nor can we doubt the


                                   32
parents'      best    intentions        in    attempting    to   seek   the    optimal

placement for their son.                But we must agree with the district

court and the appeals panel in holding that program optimality is

not the standard.           See 3/3/92 Order at 4; Dist. Ct. Op. at 7.

Rowley and Furhmann clearly hold that a program is appropriate if

it confers some educational benefit; it does not need to be

superior to the alternatives.                 See Rowley, 458 U.S. at 200, 102

S. Ct. at 3048; Fuhrmann, 993 F.2d at 1037.                      Even assuming that

"intensity" was required to confer some benefit, the district's

IEP still satisfies Rowley's appropriateness test.                          While the

district concededly did not propose full day programming for

Scott,    it    did     offer     programming      that    could   have    been   more

"intense" than what Scott had actually been experiencing.                       Due to

illnesses and an evaluation at another facility, however, Scott

apparently missed a substantial number of days during the 1991-92

school year, and his fatigue apparently caused his parents to

insist that Scott end his school day at 1 pm, a full hour and a

half early.

               In sum, even if it was not optimal, the 1992-93 IEP was

calculated to confer educational benefit.                   IDEA does not require

more.    In fact, on this record, the district court would have

erred    if    it    had    ordered     the    allegedly    "better"      residential

placement       since      such    an    order     would    have    violated      other

provisions of IDEA for, as we have explained, an IEP must not

only be designed to confer some educational benefit, but it also

must deliver the programming in the least restrictive educational

environment.         See 20 U.S.C. § 1412(5)(B) (1990).                   Even if the


                                              33
1992-93 IEP was not as responsive to the expert's recommendations

as the parents might like, the court's authority to order the

residential        education           (which    may    indeed     provide       Scott     with

"better" services) is limited by this command.

                 Residential placement at MSB is not, of course, the

least restrictive educational environment.                        The least restrictive

environment is the one that, to the greatest extent possible,

satisfactorily educates disabled children together with children

who are not disabled, in the same school the disabled child would

attend      if    the     child        were   not     disabled.      See       20    U.S.C.   §

1412(5)(B) (requiring maximal educational integration of disabled

children with children who are not disabled, and restricting

separate schooling to situations when the nature or severity of

the disability is such that education in regular classes with the

use    of    supplementary             aids   and     services     cannot       be   achieved

satisfactorily); 34 C.F.R. § 300.552; see also Oberti, 995 F.2d

at 1214-16; Cordero v. Pennsylvania Dep't of Educ., 795 F.Supp.

1352 (M.D. Pa. 1992).

                 One     of     the    expressed       justifications          for   the   MSB

placement was to maximize Scott's contact with disabled peers.

This     approach,            while    conferring       benefits     in    some      spheres,

necessarily            minimizes       Scott's      contact   with      children      without

disabilities,           and     thus    directly      conflicts    with     the      statute's

objective of inclusion. In a similar factual scenario, the D.C.

Circuit      reversed           a     district      court's     order     of     residential

education for a child who also could have benefitted from "an

integrated        opportunity           for   daily    living     skill     reinforcement,


                                                 34
recreation, and peer interaction after the six-hour school day."

Kerkam v. Superintendent D.C. Public Schools, 931 F.2d at 86. In

Kerkam, the court explained:
          The decision [to order residential education
          over day placement at a district school]
          turned   on   [the   court's]  understandable
          concern for Alexander's best interests rather
          than   on   the    appropriateness   of   the
          educational program . . . . There seems to
          be little doubt that Alexander would have
          made less progress under the [district's]
          program, but Rowley precludes our taking that
          factor into account so long as the public
          school alternative confers some educational
          benefit.


Id. at 87 (citation omitted).

           This case presents the same situation.   Placement at

the MSB was not required under Rowley, and it conflicts with the

statute.   Accordingly, because the order of the district court

affirming the Appeals Panel gave "due weight" to its rulings as

we have explained that concept and because it otherwise properly

comports with both the appropriateness and the least restrictive

environment requirements, it must be affirmed.0


0
We do not reach this result without misgivings. We are acutely
sensitive to the factors that so strongly motivated the hearing
officer and so seriously trouble Scott's parents, namely the need
for Scott to associate with similarly handicapped peers who are
succeeding and who might therefore serve as role models and give
him confidence that he too can succeed.       We acknowledge the
importance of this approach (and this goal). A placement at the
MSB would apparently satisfy this need but would be attended by
certain disadvantages, such as the lack of contact with non-
handicapped peers, which IDEA elevates to legal relevance.     We
therefore emphasize the need for public school officials to
devise means to reconcile these conflicting but compelling
interests.



                                35
                          VI. COMPENSATORY EDUCATION

            On    cross-appeal,        the     school       district     contests      the

hearing officer's award of six months of compensatory education

to    remedy     its    alleged      failure     to        provide    Scott     with    an

appropriate program during the 1991-92 year.                       Both the panel and

the    district        court      affirmed     this        award.        For     several

independently      sufficient        reasons,     we        reverse     the    order    of

compensatory education.0

            IDEA       requires    school    districts        to     provide    disabled

children with free, appropriate education until they reach the

age of twenty-one.         See 20 U.S.C. § 1412(2)(B) (1990).                   An award

of    compensatory        education     extends        the      disabled       student's

entitlement to the free appropriate education beyond age twenty-

one   to   compensate      for    deprivations        of    that     right    before   the

student turned twenty-one.             In Lester H. v. Gilhool, 916 F.2d

865, 872 (3d Cir. 1990), cert. denied, 499 U.S. 923, 111 S. Ct.

1317 (1991), we recognized that adults (i.e., individuals over

twenty-one) have a remedy for deprivations of their right to a

0
At the threshold, we note that this argument may have been
waived. The parents apparently did not contest the appropriate-
ness of the 1991-92 IEP at the time it was offered. Indeed, they
seemed to invoke the alleged inappropriateness of the 1991-92 IEP
only to help them prove that the 1992-93 IEP, which they argued
was nearly identical, was inappropriate. Because appropriateness
is judged prospectively, see Furhmann, 993 F.2d at 1040, and
discussion supra at 30-32, we have declined the parents'
invitation to play "Monday morning quarterback" by judging the
1991-92 IEP in hindsight.      Although we do not construe the
parents' failure to press their objections to the IEP when it was
offered as a waiver, it casts significant doubt on their
contention that the IEP was legally inappropriate since it
suggests that the parents were also unaware prospectively that
the 1991-92 IEP was unlikely to confer educational benefit.


                                         36
free appropriate education during the period before they reached

age twenty-one.       We held that Congress intended compensatory

education to be available to remedy the deprivation of the right

to a free appropriate education.          Id. at 872-73 (citing Miener v.

State of Missouri, 800 F.2d 749 (8th Cir. 1986)); 20 U.S.C.

§ 1415     (authorizing   courts      to     award   relief     they       deem

appropriate).      Because the Supreme Court has held that tuition

reimbursement is an appropriate remedy under the EHA (IDEA's

predecessor), School Committee of Burlington v. Department of

Education, 471 U.S. 359, 370-71, 105 S. Ct. 1996, 2003 (1985),

and because a student's access to a remedy should not depend on

the parents' ability to "front" the costs of the education and

sue for reimbursement, see Miener, 800 F.2d at 753, courts can,

under appropriate circumstances, order districts to provide free

appropriate education after the student reaches twenty-one.

             We have held that compensatory education is available

to respond to situations where a school district flagrantly fails

to comply with the requirements of IDEA.         See Lester H., 916 F.2d

865. See also Burlington v. Department of Educ., 736 F.2d 773,

801 (1st Cir. 1984), aff'd, 471 U.S. 359, 105 S. Ct. 2003 (1985)
(upholding    reimbursement    as   equitable    remedy     available   where

rights are violated).     Although we do not believe that bad faith

is required, most of the cases awarding compensatory education

involved   quite   egregious   circumstances.        This    case   does    not

appear to be in that category.            For instance, in Lester H., we

awarded compensatory education where a district took 30 months
after admitting that the in-district placement was inappropriate


                                     37
to locate an appropriate placement despite the availability of at

least six suitable schools within the state.                         See Lester H., 916

F.2d at 870, 873.             In addition to implicating much more culpable

conduct, Lester H. also explicitly reserved the question whether

a court could order compensatory education for periods when a

district     attempts         in      good     faith    to    develop     an     appropriate

placement.      Lester H., 916 F.2d at 873 n.12.

             The        cases        from      other     circuits        which       recognize

compensatory       education          without     explicitly        requiring        a    higher

degree of intent by the district have also involved more culpable

conduct. See Burr v. Ambach, 863 F.2d 1071, 1073 (2d Cir. 1988)

(awarding       compensatory            education        where      state        institution

disqualified a student because of its purported inability to

accommodate        his     multiple          handicaps        without      mentioning         or

considering placement in an extant special program for multiple

handicapped students); Jefferson County Bd. of Educ. v. Breen,

853 F.2d 854, 857-58 (11th Cir. 1988) (awarding compensatory

education     to        deter         states     from        unnecessarily        prolonging

litigation); Miener v. State of Mo., 800 F.2d 749 (8th Cir. 1986)

(reversing denial of compensatory education for a child who spent

three years in mental health ward of a state hospital after

district      failed            to      provide        any      educational           services

notwithstanding its own evaluation recommending such services).

At   least    one       other        circuit    has     explicitly       made    a       "gross"

violation of IDEA a prerequisite to an award of compensatory

education.      See Garro v. State of Conn., 23 F.3d 734 (2d Cir.
1994);   Mrs.      C.    v.     Wheaton,       916     F.2d   69,   75    (2d    Cir.      1990)


                                                38
(requiring a gross violation and defining such as instances of

undue delay in holding hearings or taking advantage of mental

infirmity to deny a placement).

             We    find      the    Second         Circuit's       approach          generally

persuasive.        Although        generally         speaking      we    believe       that    a

plaintiff seeking compensatory education must prove a gross or

prolonged     deprivation          of   the        right    to     a    free    appropriate

education, the facts of this case patently do not approach this

situation,    and       we    therefore       need     not       precisely      define      the

standard.         Two    things     are     clear,         however.        First,      it     is

necessary, but not sufficient, to demonstrate that some IEP was

actually inappropriate.            Second, bad faith is not required.

             In this case, there can be no award of compensatory

education    because         the   record      does    not       contain       any   evidence

pertaining    to    the      inappropriateness             of    the    1991-92      IEP,   the

program serving as the basis for the award.                             The only evidence

bears on Scott's lack of progress.                         But as we have explained,

appropriateness involves only a prospective evaluation of the

IEP, not an after-the-fact measurement of the student's success

under the plan.

             Even if there were some record on the appropriateness

of the 1991-92 IEP, the compensatory education award would still

be erroneous since there is simply no indication of any gross or

prolonged deprivation by the district.                       The district's ignorance

of the parent's dissatisfaction with the 1991-92 IEP (due to

their failure to contest that program) precludes a finding that




                                              39
any deprivation was flagrantly prolonged.0                Since the record does

not reflect the district's awareness of the inappropriateness of

the 1991-92 IEP, this case is unlike Lester H.                         And once the

district was apprised of the arguable inappropriateness of the

1992-93 plan, it did not delay in seeking to resolve the dispute.

Thus, under the circumstances of this case, it simply cannot be

said    that   the    district     deprived       Scott     of    an      appropriate

placement,     delayed    for    any    inordinate         period      of    time     in

addressing any disputes over the program, or in any other way

grossly    disregarded    its    obligation       to   provide      Scott     with   an

appropriate educational program.

            In any event, there was no violation shown here, since

the    1991-92    IEP     was    not    challenged         and      was     therefore

presumptively     appropriate.          We    must     therefore       reverse       the

district    court's     order   insofar      as   it   awarded      six     months    of

compensatory education for the purported inappropriateness of the

1991-92 IEP.

                                VII. CONCLUSION

             For the foregoing reasons, we will affirm the order of

the    district   court   insofar      as    it   upheld    the     denial    of     the



0
Although the fact that the appropriateness of the 1991-92 IEP
was not properly challenged renders any further analysis of the
school district's culpability unnecessary, we note that the
district court appeared to misapprehend the standard.         The
district court seemed satisfied that the parents' challenge to
the 1992-93 IEP made the school district aware of the alleged
deprivation occurring during 1991-92.     We emphasize, however,
that the 1991-92 IEP would have to have been contested at the
proper time before a court even considers whether the district's
failure to remedy the allegedly inappropriate IEP was prolonged.

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

it upheld the award of compensatory education.




                               41
