
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 97-1506                               MILFORD SCHOOL DISTRICT,                                 Plaintiff, Appellee,                                          v.                       WILLIAM F., ETC., AND CLAIRE F., ET AL.,                               Defendants, Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. James R. Muirhead, U.S. Magistrate Judge]                                            _____________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                                Lynch, Circuit Judge,                                       _____________                            and Keeton,* District Judge.                                          ______________                                _____________________               Linda A. Theroux for appellants.               ________________               Diane M.  Gorrow, with  whom Soule,  Leslie, Kidder,  Zelin,               ________________             _______________________________          Sayward & Loughman was on brief, for appellee.          __________________                                 ____________________                                  November 10, 1997                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                    KEETON, District  Judge.   This case  arises under  the                    KEETON, District  Judge.                            _______________          Individuals  with Disabilities  Education Act  (IDEA), 20  U.S.C.             1400-1420, New Hampshire's implementing legislation, N.H. Rev.          Stat. Ann.    186-C, federal regulations, 34 C.F.R.  pt. 300, and          state regulations, N.H. Code Admin. R. Ed. 1101-1137.  Appellants          seek full reimbursement from  appellee for the costs  incurred in          placing  their  educationally  disabled  daughter  at  a  private          college  preparatory school, the  Dublin School, for  the 1995-96          school  year.   Appellants  argue  that  their daughter  did  not          receive  either  an  appropriate   educational  placement  or  an          appropriate Individualized Education  Plan (IEP)  as required  by          the  IDEA framework.  Throughout this litigation, appellants have          sought full  reimbursement  of the  costs they  incurred for  the          1995-96  school year,  arguing that  their claim is  supported by          Burlington v.  Department of Educ.,  736 F.2d 773, 792  (1st Cir.          __________     ___________________          1984), aff'd, 471 U.S. 359  (1985).  Concluding that the district                 _____          court was correct in rejecting this claim, we affirm the judgment          of the district court.                    The parents' freedom  to place their child  in a school          other  than the one offered  by the school  district was never at          issue in this case.  What was  at issue was the parents' asserted          right  to  treat  the  alleged failure  of  the  defendant School          District to  satisfy the  placement and  IEP requirements  within          prescribed times as  entitling the parents to  full reimbursement          for  their  unilateral, out-of-district  placement  of  the child          without the approval of any hearing officer or court.                                         -2-                    Under 20 U.S.C.    1415(e), a section of  the IDEA, the          district court had jurisdiction based on a federal question under          28  U.S.C.    1331, involving  an appeal  from  an administrative          decision  of  a  hearing  officer acting  for  the  New Hampshire          Department of  Education.  In  this instance, the  district court          assigned the case to Magistrate  Judge James R. Muirhead, and the          appeal to this court is under 28 U.S.C.   636(c)(3) and  1st Cir.          Loc. R. 3.1.  The final  order of March 17, 1997 in  the district          court granted summary judgment to the Milford School District.  A          timely notice of appeal brought the matter to this Court.                                I. Standards of Review                                I. Standards of Review          A.  By the District Court          A.  By the District Court                    We  first  address  appellants'  contention  that   the          district  court  was  required  to  defer  both  to  the  hearing          officer's findings of  fact and to her  rulings of law, and  that          alleged errors  require that  we reverse  and order  judgment for          appellants for full reimbursement.                    The  IDEA  provides  that  upon  appeal  from  a  state          administrative officer's decision, the federal district 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.    1415(e)(2).   In exercising its authority  under the          statute, a district court must address the following questions:                                         -3-                      First,  has the  State complied  with the                      procedures set forth in the Act?                      Second, is the individualized educational                      program  developed   through  the   Act's                      procedures   reasonably   calculated   to                      enable the  child to  receive educational                      benefits?          Board of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982).          ______________    ______                    On  appeal from  a  district court  judgment in  a case          arising under this  statute and these precedents, parents must do          more than show that a defendant school district or a state agency          did not in  every respect comply formally with (as phrased in the          first question identified in Rowley) "the procedures set forth in                                       ______          the act," including prescribed requirements for placement and for          developing  an  IEP.   The  parents  must  show some  default  or          deficiency material to outcome.  See Lenn v. Portland Sch. Comm.,                                           ___ ____    ___________________          998 F.2d 1083, 1088 (1st Cir. 1993).                    In this  instance, the magistrate  judge's introductory          statement of the  standard of district court review is consistent          with the statute and Rowley.  Order of March 17, 1997 at 8-9.  In                               ______          developing their  argument that  the magistrate judge's  reasoned          explanation of his  decision failed  to consider  and "give  'due          deference' to  the Administrative  Hearing Officer's  Findings of          Fact and Rulings of Law," appellants allude  from time to time to          testimony of Mrs. F  that had not been transcribed.   At no point          in the record before us, however, or indeed in oral argument, has          any suggestion been made of deliberate destruction or withholding          of a  tape or transcript.   In proceedings before  the magistrate          judge, each  party had the  opportunity to call attention  to any                                         -4-          evidence  and argument  that  could raise  a  genuine dispute  of          material  fact fatal  to  the other  party's  motion for  summary          judgment.  In these circumstances, the record does not support an          argument  that  either  the  district  court  or this  court,  in          determining whether a  genuine dispute of material  fact existed,          should  infer that Mrs.  F's relevant observations  and opinions,          and reasons for them, were not adequately presented in the record          that   was  before  the  magistrate  judge  despite  the  missing          transcript.  The  magistrate judge's reasoned explanation  of his          decision, in the 25-page  ORDER   issued, satisfied the terms and          conditions  of district court  review and deference  explained in          Burlington, 736  F.2d at 792 (A  federal trial court  is "free to          __________          accept or reject the findings [of the hearing officer] in part or          in whole" as  long as it  considers and responds to  all material          findings).                    Appellants'  assertion  that  statutes  and  precedents          require deference to an  administrative hearing officer's rulings          of law is not well founded.  Legal rulings are subject to de novo          review, both in the district court and in this court.  A district          court  reviewing an administrative officer's rulings of law under          the  IDEA framework is  acting appropriately in  disregarding any          rulings about  applicable  law that  are not  in conformity  with          applicable  statutes and precedents.  See Abrahamson v. Hershman,                                                ___ __________    ________          701 F.2d  223, 231  (1st Cir. 1983).   An  administrative hearing          officer's rulings of law, even if fully reasoned (and the more so          when  stated without  an explained  basis,  as were  some of  the                                         -5-          rulings that the district court disregarded in this instance) are          not entitled  to deferential review.   No  deferential review  is          appropriate even if  the rulings of law concern interpretation of          a state statute or state  judicial decisions rather than  federal          law.                    With respect to  a hearing officer's findings  of fact,          it is true that  a reviewing district court  is directed to  give          deference  to them.   Due  deference, however,  does not  require          deference  to a finding the  cogency of which  is impaired by the          hearing  officer's dependence  on an  error of  law.   A district          court  can disregard an administrative officer's findings of fact          whenever  the  court  determines  that  they  are  unreliable  or          incorrect  in  light  of  the   totality  of  the  record.    See                                                                        ___          Abrahamson,  701  F.2d at  230.   In  this  case, because  of the          __________          officer's errors  in applying both  federal and state law  as the          officer considered the facts (as explained in subsequent parts of          this opinion),  the magistrate judge's  decision, as a  matter of          law on motion for summary judgment, not to defer to the officer's          factual findings was not erroneous as a matter of law and was not          an abuse of discretion.          B.  Appellate Review of the Magistrate Judge's Decision          B.  Appellate Review of the Magistrate Judge's Decision                    Appellate review of rulings of law is plenary.                    Meghan's parents  could receive the  full reimbursement          they seek only  if, under applicable law, they had  the choice by          their  unilateral  actions,  and  without  the  approval  of  any          administrative official or  court, to place Meghan  at the Dublin                                         -6-          School without consent of the  Milford School District and at the          Milford  School District's expense.  See  Burlington, 736 F.2d at                                               ___  __________          798.  In Roland M. v. Concord  Sch. Comm., 910 F.2d 983, 999-1000                   _________    ___________________          (1st Cir. 1990), cert. denied, 499  U.S. 12 (1991), we held  that                           ____________          an unjustified  unilateral placement in a private school does not          give  rise to  a  right  to reimbursement  unless  it is  finally          adjudged both  that the  parents' placement  was appropriate  and          that an inappropriate IEP, or none at all,  had been developed by          the school district.  The  parents are not completely barred from          reimbursement  because they  acted unilaterally.    But they  act          unilaterally at  a financial risk  that serves as a  deterrent to          hasty  or ill-considered transfer, and "reimbursement will not be          available to the  parents if it turns out that  the school system          had  proposed and  had the  capacity to implement  an appropriate          IEP."  Burlington, 736 F.2d at 798.                 __________                    In  this case, the  district court determined  that the          parent's unilateral,  out-of-district placement  did not  satisfy          these requirements because (i) Meghan's IEP was appropriate under          federal  and state law,  (ii) the Dublin  School, as  a matter of          law,  was not  an  appropriate placement,  and  (iii) the  school          district  offered an alternative appropriate placement at Milford          High.  On appeal, the parents must show that  the district court,          in  determining that Meghan's placement and IEP were appropriate,          made  mistakes of  law or  committed  an abuse  of discretion  in          reaching the decision  to allow summary judgment for  the Milford          School District.                                         -7-                                    II. The Merits                                    II. The Merits                    Appellants  challenge the  IEP,  first,  on the  ground          that,  in practical effect,  it predetermined that  placement for          the 1995-96  school  year would  necessarily  be at  the  Carroll          School.  The hearing  officer predicated her conclusion that  the          IEP was inappropriate  solely on  the ground  that "the  [School]          District predetermined that Meghan would be placed at the Carroll          High School  for her  Ninth Grade Year  (1995/96)."   Decision of          Jan. 18, 1996, at 19.                    Appellants also challenge the School District's offered          placement of Meghan at either  the Carroll School or Milford High          as  being  inappropriate  as  a  matter of  law  under  the  IDEA          framework.                       Finally,  appellants   challenge  the  IEP   and  the          proposed placement on the ground that the district court erred in          determining  that, as a  matter of historical  fact, Milford High          was offered as an alternative for Meghan's placement.                    A district court's evaluation of an IEP is ordinarily a          mixed determination of law and  fact.  The central question posed          for  review  in  this  court  is  whether  the  district  court's          determination  that the IEP was appropriate was clearly erroneous          on the record as a whole.  Hampton Sch. Dist. v. Dobrowolski, 976                                     __________________    ___________          F.2d 48, 52 (1st Cir.  1992)(citing Roland M.).  Implicit  in the                                              _________          scope  of  authority  of  the  district court  is  discretion  in          assigning weight to various relevant historical facts.                                         -8-                    We  perceive no  clear error  in  the district  court's          determination  that  Meghan's  IEP  did  not  "predetermine"  her          placement.  The district court could have reasonably inferred and          did expressly infer  from correspondence,  transcripts and  other          communications  in the  record  that  placement  was  offered  at          Milford High School.   See Order of District  Court at 15 (citing                                 ___          the  school district's  exhibits nos.  10,  23, 27,  49, 76,  and          especially no. 72, which was  the transcript of the IEP meeting).          No predetermination at Carroll could have resulted from a process                                 _______          in which placement at Milford High School was offered.                                ___________________                    The district  court's  determination  that  the  school          district offered Milford High as a placement during the July 1995          meetings was one of material historical fact that was not clearly          erroneous.   As already noted,  the district court relied  on and          made express reference to  substantial evidence in the  record in          making this determination.                    Also,  the  district court's  evaluative  determination          that   the   IEP  and   offered  placements   fulfilled  Meghan's          educational  needs resulted from  an appropriate consideration of          the evidence in  the record.  See  Order of District Court  at 22                                        ___          ("Based on the record, I  conclude that Milford High School could          have  provided Meghan with a 'free appropriate public education,'          by conferring her  educational benefits in the  least restrictive          environment.").   The additional  transcript of the  "due process          hearing"  that  appellants now  ask  us  to  consider contains  a          recitation   of   the   same   arguments   against    the   IEP's                                         -9-          appropriateness  that  appellants  have  made  elsewhere  in  the          history  of proceedings  in this  case.   Appellants do  not call          attention to any  challenge not considered  and rejected, by  the          district court, in a decision within the scope of its discretion.                    The district  court  relied  on  substantial  evidence,          including  expert testimony, that  placement at Milford  High for          Meghan  would be appropriate for her educational needs.  Although          not itemizing and commenting upon  all relevant evidence, pro and          con, as appellants argue should be done by a reviewing court, the          district court's reasoning is sufficiently explained to show that          the  court recognized  its obligation  to  weigh expert  opinions          along   with   other   evidence   in   reaching  its   evaluative          determination   as  to   whether   the  offered   placement   was          appropriate.   The district  court's  determination that  Milford          High would be an appropriate placement for Meghan was not clearly          erroneous.                        We conclude,  also, that the district  court's decision          that   Milford  High  could   have  provided  Meghan   the  "free          appropriate  public education" (FAPE) required under the IDEA was          not affected  by any error  of law.   The Supreme Court  and this          Court  have consistently construed  the FAPE requirement  to mean          that any given placement must guarantee "a reasonable probability          of educational  benefits with  sufficient supportive  services at          public expense."  G.D. v.  Westmoreland Sch. Dist., 930 F.2d 942,                            ____     _______________________          948  (1st  Cir.   1991)(citing  Rowley,  458  U.S.   at  187-89).                                          ______          Appellants have asserted that Dublin  School, as a matter of law,                                         -10-          was  the only  appropriate placement.   In  other cases,  we have          expressly rejected  the argument  that only  one placement  could          meet  the  FAPE requirement.    "[A] FAPE  may  not  be the  only          appropriate choice, or the choice of certain selected experts, or          the child's parents' first choice, or even the best choice."  Id.                                                                        ___          In  this case,  we conclude  that the  record supports  the trial          court's  inference that there  was a reasonable  probability that          Meghan would  receive educational benefits and sufficient support          at Milford  High.   Testimony at the  IEP and  placement meetings          shows that several  administrators and experts agreed  on Milford          High's  appropriateness   and  some   personally  supported   the          maximization of Meghan's mainstreaming opportunities there.                      We further  conclude that  the district  court made  no          error  of law  in determining  that Milford  High met  the "least          restrictive environment" requirement under state and federal law.                    Federal  and state regulations  under the IDEA,  see 20                                                                     ___          U.S.C.    1412 (5)(B);  20 U.S.C.    1414(a)(1)(C)(iv), prescribe          that all  authorized decisionmakers  (school district  officials,          administrative officers  and  trial court  judges)  charged  with          evaluating IEPs and placements must subject their  determinations          to a  check for conformity with  the LRE requirement.   34 C.F.R.            300.550;  N.H. Code  Admin. R.  Ann.  Ed. 1115.02.   Under  the          federal regulations, the LRE means:                      (1)   That   to    the   maximum   extent                                               ________________                      appropriate, children  with disabilities,                      ___________                      including children  in public  or private                      institutions  or  other  care facilities,                      are educated  with children who  are non-                          _____________________________________                      disabled; and                      ________                                         -11-                      (2)   That   special   classes,  separate                                                       ________                      schooling  or other removal  . . . occurs                                                         ______                      only  when .  .  .  education in  regular                      ____                      classes  with  the use  of  supplementary                      aids  and  services  cannot  be  achieved                                 ______________________________                      satisfactorily.                      ______________                      34  C.F.R.     300.550(b)(1)-(2) (emphasis  added).    The school          district, normally in  cooperation with the parents  and experts,          proposes placement  from a  continuum of  alternative placements.          34  C.F.R.    300.551.   The term  "mainstreaming" refers  to the          movement  along a continuum  from more restrictive  or special to          less restrictive or regular placements.                    The district court did not err in concluding that, as a          matter  of law,  the relevant  federal  and state  administrative          prescriptions require that placement be  made in the local public          school whenever the circumstances  warrant a discretionary choice          among  otherwise  appropriate   in-district  and  out-of-district          placements.  34 C.F.R.   300.552(c); N.H. Code Admin. R. Ann. Ed.          1115.05(b)  ("Unless  the   educationally  handicapped  student's          individualized    education   program    requires   some    other          arrangements, the student shall  be educated in the school  which          he/she  would  attend   if  not  handicapped.").     Under  these          guidelines,  even if  it be  assumed that  the Dublin  School was          otherwise  appropriate,   appellants   would   be   entitled   to          reimbursement only  if the Milford School District  did not offer          an  appropriate placement  at the  local  public school,  Milford          High.                    The parents contend that Meghan should have been placed          at  the  Dublin  School  because  it  was  the  only  appropriate                                         -12-          placement, once the  requirement of mainstreaming into  an LRE is          taken  into account.    This proposition,  however,  rests on  an          erroneous   interpretation   of  law   regarding   mainstreaming.          Placements  are  not  "made by  mechanically  choosing  the least          restrictive environment."  See Abrahamson,  701 F.2d at 230.  Nor                                     ___ __________          does the need  to preserve the  cooperative procedures among  the          relevant   participants  support   appellants'  position.     The          guidelines for  a placement decision  in New Hampshire law  as in          federal law  provide for involving many interested  persons and a          wide variety of factors in the choice among alternative potential          placements,  and the law does not  specify that any one factor or          any one person's opinion must be given decisive weight.  See N.H.                                                                   ___          Code Admin. R. Ann. Ed. 1115.02-1115.05.                    The LRE requirement does not support a course of action          in  which parents  who believe  that their  chid should  attend a          particular  private school are  entitled to be  reimbursed by the          school   district  just  because  that  private  school  is  less          restrictive.    Even if the private school  was less restrictive,          it  would still have  to be a placement  deemed appropriate by an          authorized  decisionmaker in terms  of educational benefit.   See                                                                        ___          Roland M.,  910 F.2d at  993 ("To determine a  particular child's          _________          place on this  continuum, the desirability of  mainstreaming must          be weighed  in concert  with the  Act's  mandate for  educational          improvement.   [Placement] requires  a balancing of  the marginal          benefits  to  be gained  or  lost on  both  sides of  the maximum          benefit/least restrictive  fulcrum.").   In this  case, when  the                                         -13-          required balancing is taken into  account, the evidence of record          supports  the district  court's decision  that  the Milford  High          placement strikes a permissible balance.                    The  judgment of the  district court is  AFFIRMED, with          costs to appellee.                                         -14-
