In the
United States Court of Appeals
For the Seventh Circuit

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

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

Plaintiffs-Appellees, Cross-Appellants,

v.

Board of Education of Bradley-Bourbonnais
High School District No. 307, et al.,

Defendants-Appellants, Cross-Appellees.



Appeals from the United States District Court
for the Central District of Illinois.
No. 96-2254--Michael P. McCuskey, Judge.


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



 Before Posner, Coffey, and Ripple, Circuit Judges.

 Posner, Circuit Judge. The district judge held
that a public school district in Illinois had
violated its duty under the Individuals with
Disabilities Education Act to provide Dale M.
with "a free appropriate public education that
emphasizes special education and related services
designed to meet [disabled children’s] unique
needs," where "related services" include
"transportation, and such developmental,
corrective, and other supportive services
(including . . . psychological services . . .
[and] social work services . . .) as may be
required to assist a child with a disability to
benefit from special education." 20 U.S.C.
sec.sec. 1400(d)(1)(A), 1401(22). Dale became a
student in the district in 1993, when he was 14
years old. He soon became a serious disciplinary
problem. He disrupted classes and was truant. The
following year he was placed in a "therapeutic
day school" designed to deal with disruptive and
truant students, but in his first four months he
attended school only 20 days, though when he did
attend he behaved himself, did the assigned work,
and got good grades. For some time he had been
drinking alcohol to excess and also consuming
marijuana, cocaine, and other illegal drugs, and
in January of 1995 he was hospitalized for
depression and at the same time charged with
residential burglary and theft of a car. He was
placed on probation for these offenses. When he
got out of the hospital he refused to return to
school, but received home instruction until
November, when he was again charged with
residential burglary and this time sent to jail.
He was examined by a psychologist who found that
Dale has no learning disability but instead what
the psychologist called a "conduct disorder,"
along with depression and substance abuse.

 The school district wanted to send Dale back to
the therapeutic day school. Instead, his mother,
with whom he was living (his parents are
divorced), obtained Dale’s release from jail and
placed him in a residential school, the Elan
School, in Maine. She demanded that the school
district pay for Dale’s attending Elan, as
otherwise he would not be getting the free
appropriate public education to which he was
entitled. The school district refused. The Elan
School does not offer psychiatric or other
medical treatment for substance abuse or
depression. As far as we can determine, it’s just
a boarding school for difficult children. Dale
did not like the school, and was excluded from
most school activities because of his belligerent
attitude.

 The mother sought reimbursement of the expense
of Dale’s attending Elan. Her claim was
adjudicated in succession by two hearing officers
appointed by the state. The first ordered the
public school district to pay but the second, the
reviewing officer, reversed the order of the
first. He could find no evidence that Elan
provided a superior educational experience for
Dale to the therapeutic day school, let alone any
treatment for his "conduct disorder" or his
depression and substance abuse; it merely
provided confinement, thus solving the problem of
his truancy. The hearing officer did not think
that the statute required the school district to
pay for confining a truant student.

 The district judge reversed and ordered
reimbursement. The school district has paid
pursuant to the district court’s order, and the
plaintiffs argue that this makes the school
district’s appeal moot, but that is wrong. A
judgment creditor who pays the judgment pending
appeal instead of posting a supersedeas bond
(which would automatically stay collection, see
Fed. R. Civ. P. 62(d)) is entitled to the return
of its money if the decision is reversed, and so
the payment does not moot the appeal unless the
appellant has relinquished his right to seek
repayment if he wins. In re Farrell Lines Co.,
761 F.2d 796 (D.C. Cir. 1985) (per curiam); 11
Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure sec. 2905,
pp. 525-26 (2d ed.1995); cf. United States v.
Hougham, 364 U.S. 310, 312-13 (1960); United
States for Use and Benefit of H & S Industries,
Inc. v. F.D. Rich Co., 525 F.2d 760, 764-65 (7th
Cir. 1975). The school district has not
relinquished that right.

 So we must decide whether the district court’s
decision was correct. As we explained in Morton
Community Unit School Dist. No. 709 v. J.M., 152
F.3d 583, 587-88 (7th Cir. 1998), when the
district judge does not take fresh evidence but
instead bases his review of the hearing officer’s
decision on the record compiled in the
administrative proceedings, he is required to
give "due deference" to that decision. That is,
the fact that he disagrees with the officer is
not enough to justify setting aside the latter’s
order; he must be strongly convinced that the
order is erroneous. See also Board of Education
v. Rowley, 458 U.S. 176, 206 (1982); Patricia P.
v. Board of Education, 203 F.3d 462, 466-67 (7th
Cir. 2000); Linda W. v. Indiana Dept. of
Education, 200 F.3d 504, 506 (7th Cir. 1999);
Board of Education v. Illinois State Board of
Education, 41 F.3d 1162, 1167 (7th Cir. 1994);
Susan N. v. Wilson School District, 70 F.3d 751,
757 (3d Cir. 1995). The hearing officer to whom
the judge is to defer is the second, that is, the
appellate officer, Board of Education v. Illinois
State Board of Education, 184 F.3d 912, 915 (7th
Cir. 1999); Heather S. v. Wisconsin, 125 F.3d
1045, 1053-54 (7th Cir. 1997); Thomas v.
Cincinnati Board of Education, 918 F.2d 618, 624
(6th Cir. 1990), just as, when the National Labor
Relations Board reverses one of its
administrative law judges, the reviewing court
defers to the board, not to the ALJ, e.g.,
Universal Camera Corp. v NLRB, 340 U.S. 474
(1951); Dilling Mechanical Contractors, Inc. v.
NLRB, 107 F.3d 521, 523-24 (7th Cir. 1997); Webco
Industries, Inc. v. NLRB, 217 F.3d 1306, 1311
(10th Cir. 2000), and unlike, for example,
judicial review of benefits determinations in
black lung cases, where the courts defer to the
ALJ’s decision rather than to the decision of the
Benefits Review Board on appeal from the ALJ to
it. E.g., Old Ben Coal Co. v. Prewitt, 755 F.2d
588, 589-90 (7th Cir. 1985).

 But, by further analogy to the rule in judicial
review of Labor Board decisions, Universal Camera
Corp. v NLRB, supra, 340 U.S. at 491-97; Dilling
Mechanical Contractors, Inc. v. NLRB, supra, 107
F.3d at 524, we believe that the reviewing court,
in deciding whether to uphold a reversal by the
second hearing officer of the first hearing
officer’s decision, must give considerable weight
to any credibility determinations made by the
first hearing officer, since the second officer,
exercising as he does an appellate rather than a
trial function, will generally not have been in a
position to second guess those determinations.
See Heather S. v. Wisconsin, supra, 125 F.3d at
1053-54.

 Evidence was presented to the district judge, in
the form of affidavits and other documents
attached to the summary-judgment papers, but
there is no indication in his opinion that he
considered any of it. Cross-motions for summary
judgment are the standard method for presenting a
case to a district court for decision on the
record compiled by the administrative tribunal
that the court is reviewing. Patricia P. v. Board
of Education, supra, 203 F.3d at 466; Heather S.
v. Wisconsin, supra, 125 F.3d at 1052; Hunger v.
Leininger, 15 F.3d 664, 669-70 (7th Cir. 1994);
Kirkpatrick v. Lenoir County Board of Education,
216 F.3d 380, 385 (4th Cir. 2000). The grant of
the plaintiffs’ motion thus implied that the
judge was not considering any evidence not
presented in the administrative proceedings. The
evidence that had been submitted for the first
time in the district court indicated, for
example, that after the decision by the second
hearing officer Dale graduated from Elan. But the
judge said that "Dale is receiving an educational
benefit from Elan" (emphasis added), implying
that Dale was still at the school. This is a
further indication that the judge didn’t consider
any of the new evidence.

 The judge recited the correct, the deferential,
standard of review for the case where no new
evidence is considered (still another indication
that he did not consider the new evidence), but
when he came to actually discuss the second
hearing officer’s decision, he applied an
incorrect standard. He said for example that he
"disagrees with the reviewing officer’s
conclusion that Elan was inappropriate" and "a
preponderance of the evidence shows that Elan is
an appropriate placement for Dale." That is the
language of de novo determination of contested
factual issues. The judge may have been confused
by the language of the statute: "In any action
brought under this paragraph the court shall
receive the records of the administrative
proceedings, shall hear additional evidence at
the request of a party, and, basing its decision
on the preponderance of the evidence, shall grant
such relief as the court determines is
appropriate." 20 U.S.C. sec. 1415(i) (2)(B). When
the court has before it evidence that was not
before the hearing officers, the amount of
deference due the reviewing officer declines,
since the latter’s decision was based on an
incomplete record. But when there either is no
new evidence or the judge for some reason doesn’t
consider it, he owes considerable deference to
the reviewing officer.

 When due deference is given that officer, we
think it plain that his determination that
placement in the Elan school was not the "free
appropriate education" to which the statute
refers should not have been disturbed. It is true
that Dale has psychological problems that
interfered with his obtaining an education, even
though he has no learning disability or
retardation. And the statute refers explicitly to
"psychological services" as one type of "related
services" that the statute may require a school
district to pay for if, without them, the
disabled child--and we do not understand the
school district to be denying that Dale’s
problems add up to a disability within the
meaning of the statute, 20 U.S.C. sec. 1401(3);
34 C.F.R. sec. 300.7; Board of Education v.
Nathan R., 199 F.3d 377, 379 n. 2 (7th Cir.
2000); compare Rodiriecus L. v. Waukegan School
District No. 60, 90 F.3d 249, 254 (7th Cir.
1996)--cannot obtain an education. But the Elan
School does not provide psychological services,
at least to Dale. For him all it provides is
confinement. He was placed in Elan not from any
school in the defendant school district, but from
jail. Elan is a jail substitute. An incorrigible
truant and lawbreaker, Dale does better in every
respect when he is in a custodial setting than
when he lives at home.

 The only difference between the therapeutic day
school in which the school district put him (and
wanted to return him to, despite his history of
truancy) and Elan is that Elan is a boarding
school specializing in anfractuous kids. So at
least the second hearing officer determined, and
the district court was obliged to defer to that
determination, which was both supported by the
evidence and within the presumed superior
competence of the administrative process to
resolve matters of educational policy. Hence Elan
was the "appropriate" placement for Dale, within
the meaning of the statute, only if confinement
is a related service within that meaning, since
obviously it is not an educational service. We
think--and this is a pure legal issue, as to
which we owe no deference to the hearing officer,
Morton Community Unit School District No. 709 v.
J.M., supra, 152 F.3d at 587--that it stretches
the statute too far to classify confinement thus.

 The essential distinction is between services
primarily oriented toward enabling a disabled
child to obtain an education and services
oriented more toward enabling the child to engage
in noneducational activities. The former are
"related services" within the meaning of the
statute, the latter not. Butler v. Evans, No. 99-
3135, 2000 WL 1231053, at *4-*6 (7th Cir. Aug 31,
2000). In our Morton case, for example, the
medical-support services rendered the plaintiff
were for the purpose of enabling him to attend
school. 152 F.3d at 583. In contrast, the purpose
of the "service" that the school district is
being asked to pay for is to keep Dale out of
jail, both directly, because the judge was
willing to release him from jail to Elan, and
indirectly, because Dale is less likely to commit
burglary and other crimes when he is in a
residential facility than when he is living at
home with only his mother to keep an eye on him.

 Another way to put this is that Dale’s problems
are not primarily educational. He has the
intelligence to perform well as a student and no
cognitive defect or disorder such as dyslexia
that prevents him from applying his intelligence
to the acquisition of an education, without
special assistance. His problem is a lack of
proper socialization, as a result of which,
despite his tender age, he has compiled a
significant criminal record. His substance abuse
interferes with his schooling; that is true; but
it interferes with much else besides, such as
ability to conform to the law and avoid jail.
Supposing that the most effective educational
program for Dale would be to take correspondence
courses while confined in a prison, we do not
think his mother would be arguing that the school
district would have to pay the prison authorities
for the expense of incarcerating him. But that is
close to what she is arguing--that since
confinement, among its other benefits to Dale,
will make it easier for him to obtain an
education, the school district is responsible for
the cost of confinement. That, we conclude, goes
too far.

 This is not a case like Kruelle v. New Castle
County School District, 642 F.2d 687 (3d Cir.
1981), where residential placement was necessary
for educational reasons. The case involved a
thirteen year old who had an IQ below 30 and
could not walk, dress, or eat without assistance.
Under stress, he would self-induce vomiting and
choking; inconsistent approaches or environments
would trigger this behavior. For that child, an
education meant training in the basic social
skills of using the toilet, dressing, feeding,
and simple communication. That education required
residential placement, which was therefore a
"necessary predicate for learning" as opposed to
being--a good description of the present case, as
of Burke County Board of Education v. Denton, 895
F.2d 973 (4th Cir. 1990)--a "response to
medical, social or emotional problems that are
segregable from the learning process." 642 F.2d
at 693; cf. Tennessee Dep’t of Mental Health &
Mental Retardation v. Paul B., 88 F.3d 1466 (6th
Cir. 1996); McKenzie v. Smith, 771 F.2d 1527
(D.C. Cir. 1985). Although Teague Independent
School District v. Todd L., 999 F.3d 127, 132
(5th Cir. 1993), could be read to leave open the
possibility that "twenty-four hour supervision in
a locked unit" might be a related service, the
court pointedly remarked that the "focus" of the
highly restrictive facility that Todd’s parents
preferred "was on behavior management," not
education.

 No other issues need be discussed. The judgment
in favor of the plaintiffs, and the award of
attorneys’ fees to them, are reversed with
directions to enter judgment for the defendants.
The dismissal of the other counts in the
complaint is affirmed. The motion to dismiss the
school district’s appeal on the ground of
mootness is denied, and the plaintiffs’ cross-
appeals are denied because they have no merit in
light of our decision of the school district’s
appeal.

Affirmed in Part, Reversed in Part.




 RIPPLE, Circuit Judge, dissenting. While chiding
the district court (unfairly in my view) for not
having given sufficient deference to the
superficial analysis of the Level II hearing
examiner, the majority fails itself to give
adequate deference of a far more fundamental
character--deference to the manifest will of the
Congress that the District must provide support
services that are necessary for the meaningful
delivery of educational services. By holding
that, as a matter of law, the residential program
at Elan does not come within the ambit of the
Act, the majority not only dooms Dale M.’s case
but also sets this circuit on a course different
from that of all the courts that have interpreted
this provision.

 Recognizing that the nature of support services
necessarily will be varied and, in the case of
some children, broad, every circuit that has
addressed the question has held that the
Congressional mandate requires the provision of a
support service that is "a necessary predicate
for learning," Kruelle v. New Castle County Sch.
Dist., 642 F.2d 687, 693 (3d Cir. 1981), and not
"segregable from the learning process," id. See
Tennessee Dep’t of Mental Health & Mental
Retardation v. Paul B., 88 F.3d 1466, 1471 (6th
Cir. 1996) (stating that districts are not
responsible for residential placement "separable
from the learning process" and citing Kruelle);
Burke County Bd. of Educ. v. Denton, 895 F.2d
973, 980 (4th Cir. 1990) ("Where medical, social
or emotional problems are intertwined with
educational problems, courts recognize that the
local education agency must fund residential
programs . . . .") (citing Kruelle); McKenzie v.
Smith, 771 F.2d 1527, 1533 (D.C. Cir. 1985)
(quoting Kruelle standard). Today, this circuit
substitutes for that test a very different
formulation: Costs are to be disallowed if the
support services are not aimed at a problem that
is "primarily educational." Slip op. at 7. That
the difference between the panel majority’s
formulation and that of our sister circuits is
not just one of semantics but a chasm of
substance is made starkly clear by the analysis
of the Third Circuit in Kruelle. There, it noted
that "basic self-help and social skills such as
training, dressing, feeding and communication"
can be part of the necessary process of
education. Kruelle, 642 F.2d at 693 (internal
quotation marks and citations omitted).

 Dale M.’s truancy is no doubt complex in its
causation and therefore in the degree of its
interrelatedness with his capacity to cope with
the usual demands of education. We lack the
institutional capacity to conduct an independent
analysis of Dale M.’s educational needs. Indeed,
we previously have been "cautioned that courts
lack the specialized knowledge and experience
necessary to resolve persistent and difficult
questions of educational policy." Board of Educ.
v. Rowley, 458 U.S. 176, 205 (1982) (internal
quotation marks and citations omitted). Notably,
here the District itself considered Dale M.’s
truancy to be related to his educational progress
until the need for a residential placement, and
the attendant expense, became an issue. It was
only at that point that the District took the
position that such a program was beyond it
obligations under the Act.

 In determining that the Elan program goes "too
far" to be within the coverage of the Act, the
majority takes issue with the characterization of
Dale M. reached by the professional educators
and, indeed, by the administrative tribunals and
the district court. In the majority’s view, he is
a delinquent deserving of punishment, not
education. The majority is entitled to its view;
in deciding this case, however, it must stay
within the record, a record that includes the
conclusions of professional educators who viewed
his situation in a very different light. For
instance, in evaluating the program at Elan, the
majority characterizes the program as one that
simply provides "confinement." Slip op. at 6.
Yet, the record makes clear that the program at
Elan involves three separate components, life
skills, counseling and class work. Reasonable
people can disagree about the effectiveness of
providing a structured environment that demands
contributing labor to a communal living
environment; however, none of us who wear black
robes are in an institutional position to second
guess the Illinois Department of Education that
approved the program as a permissible placement
for Illinois school children. See Butler v.
Evans, 225 F.3d 887, 894 (noting that residential
treatment at a psychiatric hospital could not be
compensable as an educational placement because
it was not an accredited educational
institution); Seattle Sch. Dist., No. 1 v. A.S.,
82 F.3d 1493, 1502 (9th Cir. 1996) (rejecting
school district’s argument that it should not be
responsible for residential placement in part
because residential facility was "an accredited
educational institution under state law"); Clovis
Unified Sch. Dist. v. California Office of Admin.
Hearings, 903 F.2d 635, 646 (finding that school
district was not financially responsible for
placement because the facility was "not included
as [an] educational placement option[ ] for
handicapped pupils in that state").

 In sum, I must conclude that the court has
improvidently and erroneously parted company with
the other circuits that have defined when a
residential placement is permissible. In doing
so, it has set the courts of this circuit on a
course at odds with the course set throughout the
United States for the provision of support
services under the Act. It has compounded that
error by substituting its own view for that of
professional educators as to the needs of Dale M.
and the merits of the Elan program. Accordingly,
I respectfully dissent.
