

                      [NOT FOR PUBLICATION]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 &amp; 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-
