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[NOT FOR PUBLICATION]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.

KEETON, District Judge.
_______________

This case

arises under

the

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.

seek full reimbursement from

appellee for the costs

placing

their

college

preparatory school, the

school

receive

year.

educationally

Appellants

either

an

disabled

argue

appropriate

that

IDEA framework.

sought full

1995-96

the 1995-96

their daughter

educational

Plan (IEP)

private

placement

did

not

or

an

as required

by

Throughout this litigation, appellants have

reimbursement

school year,

incurred in

at

Dublin School, for

appropriate Individualized Education

the

daughter

Appellants

of the

arguing that

costs they

incurred for

their claim is

the

supported by

Burlington v.
__________

Department of Educ.,
___________________

1984), aff'd, 471 U.S. 359

_____

(1985).

736 F.2d 773, 792

(1st Cir.

Concluding that the district

court was correct in rejecting this claim, we affirm the judgment

of the district court.

The parents' freedom

other

than the one offered

issue in this case.

right

to

District to

treat

the

their

by the school

in a school

district was never at

at issue was the parents' asserted

alleged failure

satisfy the

prescribed times as

for

What was

to place their child

placement and

of

the

IEP requirements

entitling the parents to

unilateral, out-of-district

defendant School

full reimbursement

placement

of

without the approval of any hearing officer or court.

-2-

within

the child

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.

decision

1331, involving

of

Department of

hearing

Education.

an appeal

officer acting

In

assigned the case to Magistrate

from

for

an administrative

the

this instance, the

New Hampshire

district court

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.

timely notice of appeal brought the matter to this Court.

I. Standards of Review
I. Standards of Review

A.
A.

By the District Court

By the District Court

We

district

first

court

was

officer's findings of

alleged errors

address

required

appellants'

to

defer

fact and to her

require that

contention

both

to

that

the

the

hearing

rulings of law, and

we reverse

and order

that

judgment for

appellants for full reimbursement.

The

IDEA

provides

that

upon

appeal

from

state

administrative officer's decision, the federal district court

shall

receive

administrative

the

of

the

shall

hear

at the request

of a

proceedings,

additional evidence
party, and,

records

basing its

preponderance

of

the

decision on
evidence,

the
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

procedures
enable the

through

reasonably
child to

the

Act's

calculated

to

receive educational

benefits?

Board of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982).

______________
______

On

appeal from

arising under this

district court

judgment in

a case

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

deficiency material to outcome.

must

show some

default

or

See Lenn v. Portland Sch. Comm.,

___ ____
___________________

998 F.2d 1083, 1088 (1st Cir. 1993).

In this

statement of the

instance, the magistrate

standard of district court review is consistent

with the statute and Rowley.

______

developing their

Order of March 17, 1997 at 8-9.

argument that

explanation of his

deference' to

judge's introductory

the magistrate judge's

decision failed

the Administrative

to consider

Fact and Rulings of Law," appellants allude

testimony of Mrs. F

reasoned

and "give

Hearing Officer's

In

'due

Findings of

from time to time to

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.

judge, each

party had the

In proceedings before

the magistrate

opportunity to call attention

to any

-4-

evidence

and argument

material

fact fatal

judgment.

argument

that

to

the other

party's

genuine dispute

motion for

of

summary

In these circumstances, the record does not support an

that

either

determining whether a

should

could raise

infer that Mrs.

the

district

court

or this

court,

in

genuine dispute of material

fact existed,

F's relevant observations

and opinions,

and reasons for them, were not adequately presented in the record

that

was

before

transcript.

The

the

magistrate

ORDER

of district court

Burlington, 736
__________

despite

the

magistrate judge's reasoned explanation

decision, in the 25-page

conditions

judge

missing

of his

issued, satisfied the terms and

review and deference

F.2d at 792 (A

federal trial court

explained in

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'

require deference to an

assertion

that

statutes

and

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.

court

precedents

A district

reviewing an administrative officer's rulings of law under

the

IDEA framework is

rulings about

applicable

701 F.2d

acting appropriately in

applicable

law that

statutes and precedents.

223, 231

(1st Cir. 1983).

are not

disregarding any

in conformity

with

See Abrahamson v. Hershman,

___ __________
________

An

administrative hearing

officer's rulings of law, even if fully reasoned (and the more so

when

stated without

an explained

-5-

basis,

as were

some of

the

rulings that the district court disregarded in this instance) are

not entitled

to deferential review.

appropriate even if

No

deferential review

is

the rulings of law concern interpretation of

a state statute or state

judicial decisions rather than

federal

a hearing officer's findings

of fact,

law.

With respect to

it is true that

a reviewing district court

deference

to them.

deference

to a finding the

hearing

court

Due

is directed to

deference, however,

officer's dependence

cogency of which

on an

error of

does not

give

require

is impaired by the

law.

A district

can disregard an administrative officer's findings of fact

whenever

the

court

determines

incorrect

in

light

of

the

that

totality

they

are

unreliable

of

the

record.

or

See
___

Abrahamson,
__________

701

F.2d at

officer's errors

230.

in applying both

In

this

case, because

of the

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.
B.

Appellate Review of the Magistrate Judge's Decision

Appellate Review of the Magistrate Judge's Decision

Appellate review of rulings of law is plenary.

Meghan's parents

they seek only

their

could receive the

full reimbursement

if, under applicable law, they had

unilateral

actions,

administrative official or

and

without

the

the choice by

approval

court, to place Meghan

of

any

at the Dublin

-6-

School without consent of the

Milford

798.

Milford School District and at the

School District's expense.

See
___

Burlington, 736 F.2d at

__________

In Roland M. v. Concord Sch. Comm., 910 F.2d 983, 999-1000

_________
___________________

(1st Cir. 1990), cert. denied, 499

____________

an unjustified

U.S. 12 (1991), we held

that

unilateral placement in a private school does not

give

rise to

adjudged both

right

that the

to reimbursement

parents' placement

that an inappropriate IEP, or none at all,

the school district.

reimbursement

IEP."

finally

was appropriate

and

had been developed by

acted unilaterally.

a financial risk

But they

that serves as a

act

deterrent to

or ill-considered transfer, and "reimbursement will not be

available to the

had

it is

parents are not completely barred from

because they

unilaterally at

hasty

The

unless

proposed and

parents if it turns out that

had the

the school system

capacity to implement

an appropriate

Burlington, 736 F.2d at 798.

__________

In

this case, the

parent's unilateral,

district court determined

out-of-district placement

did not

that the

satisfy

these requirements because (i) Meghan's IEP was appropriate under

federal

law,

and state law,

was not

district

High.

in

made

an

(ii) the Dublin

appropriate placement,

School, as

and

a matter of

(iii) the

school

offered an alternative appropriate placement at Milford

On appeal, the parents must show that

the district court,

determining that Meghan's placement and IEP were appropriate,

mistakes of

law or

reaching the decision

committed

an abuse

of discretion

to allow summary judgment for

School District.

-7-

in

the Milford

II. The Merits

II. The Merits

Appellants

that,

in practical effect,

the 1995-96

School.

challenge the

school

The hearing

IEP was inappropriate

IEP,

first,

it predetermined that

year would

necessarily

be at

on the

ground

placement for

the

Carroll

officer predicated her conclusion that

solely on

the ground

that "the

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

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

for

review

in

determination

this

court

F.2d 48, 52 (1st Cir.

of

is

The central question posed

whether

the

district

court's

that the IEP was appropriate was clearly erroneous

on the record as a whole.

scope

fact.

authority

Hampton Sch. Dist. v. Dobrowolski, 976

__________________
___________

1992)(citing Roland M.).

_________

of

the

district court

Implicit

is

in the

discretion

in

assigning weight to various relevant historical facts.

-8-

We

perceive no

determination

placement.

that

clear error

Meghan's

IEP

in

did

the district

not

court's

"predetermine"

her

The district court could have reasonably inferred and

did expressly infer

from correspondence,

transcripts and

other

communications

in the

Milford High School.

the

school district's

record

that

placement

See Order of District

___

exhibits nos.

especially no. 72, which was

10,

was

offered

at

Court at 15 (citing

23, 27,

49, 76,

and

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,

made express reference to

the district court relied

substantial evidence in the

on and

record in

making this determination.

Also,

the

district court's

evaluative

determination

that

the

IEP

educational

and

placements

needs resulted from

the evidence in

the record.

("Based on the record, I

have

offered

fulfilled

Meghan's

an appropriate consideration of

See
___

Order of District Court

at 22

conclude that Milford High School could

provided Meghan with a 'free appropriate public education,'

by conferring her

environment.").

hearing"

recitation

that

of

educational benefits in the

The additional

appellants now

the

same

least restrictive

transcript of the

ask

us

arguments

-9-

to

"due process

consider contains

against

the

IEP's

appropriateness

history

that

of proceedings

attention to any

appellants

have

in this

case.

made

elsewhere

Appellants do

challenge not considered

in

the

not call

and rejected, by

the

district court, in a decision within the scope of its discretion.

The district

including

Meghan

court

relied

expert testimony, that

on

substantial

evidence,

placement at Milford

High for

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

along

court recognized

with

other

determination

as

appropriate.

its obligation

to

evidence

reaching

to

in

whether

The district

the

court's

weigh expert

offered

its

opinions

evaluative

placement

determination that

was

Milford

High would be an appropriate placement for Meghan was not clearly

erroneous.

We conclude,

that

Milford

appropriate

could

have

provided

court's decision

Meghan

the

"free

public education" (FAPE) required under the IDEA was

not affected

Court

High

also, that the district

by any error

of law.

have consistently construed

The Supreme Court

and this

the FAPE requirement

to mean

that any given placement must guarantee "a reasonable probability

of educational

public expense."

benefits with

G.D. v.
____

sufficient supportive

services at

Westmoreland Sch. Dist., 930 F.2d 942,

_______________________

948

(1st

Cir.

1991)(citing

Rowley,
______

Appellants have asserted that Dublin

458

U.S.

at

187-89).

School, as a matter of law,

-10-

was

the only

appropriate placement.

expressly rejected

meet

the

the argument

FAPE requirement.

In

that only

"[A] FAPE

other cases,

we have

one placement

may

not

be the

could

only

appropriate choice, or the choice of certain selected experts, or

the child's parents' first choice, or even the best choice."

In

this case,

court's

we conclude

inference that there

Meghan would

at Milford

record supports

was a reasonable

the trial

probability that

receive educational benefits and sufficient support

High.

Testimony at the

shows that several

High's

that the

Id.
___

IEP and

placement meetings

administrators and experts agreed

appropriateness

and

some

personally

on Milford

supported

the

maximization of Meghan's mainstreaming opportunities there.

We further

error

of law

conclude that

in determining

the district

that Milford

court made

High met

no

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.

that all

authorized decisionmakers

administrative officers

and

1414(a)(1)(C)(iv), prescribe

(school district

trial court

judges)

evaluating IEPs and placements must subject their

to a

check for conformity with

300.550;

N.H. Code

charged

Ann.

Ed. 1115.02.

federal regulations, the LRE means:

(1)

That

to

the

appropriate, children
___________
including children
institutions

or

maximum
extent
________________
with disabilities,

in public
other

or private

care facilities,

are educated with children who are non_____________________________________

disabled; and
________

-11-

with

determinations

the LRE requirement.

Admin. R.

officials,

34 C.F.R.

Under

the

(2)

That

schooling
only
____

classes,

or other removal

when .

classes
aids

special

with

and

. . . occurs
______

education in

the use

of

separate
________

regular

supplementary

services cannot be achieved

______________________________

satisfactorily.
______________

34

C.F.R.

300.550(b)(1)-(2) (emphasis

district, normally in

proposes placement

34

C.F.R.

added).

The school

cooperation with the parents

and experts,

from a

300.551.

continuum of

The term

alternative placements.

"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

prescriptions require that placement be

school whenever the circumstances

among

otherwise

placements.

1115.05(b)

appropriate

34 C.F.R.

("Unless

individualized

administrative

made in the local public

warrant a discretionary choice

in-district

and

out-of-district

300.552(c); N.H. Code Admin. R. Ann. Ed.

the

educationally

education

program

handicapped

requires

student's

some

other

arrangements, the student shall

be educated in the school

which

he/she

handicapped.").

these

would

guidelines,

otherwise

attend

even if

if

not

it be

appropriate,

assumed that

appellants

Under

the Dublin

would

be

School was

entitled

to

reimbursement only

an

if the Milford School District

appropriate placement

at the

local

did not offer

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,

erroneous

interpretation

Placements

are

not

"made by

restrictive environment."

does the need

relevant

guidelines for

law

regarding

mechanically

See Abrahamson,
___ __________

to preserve the

participants

federal law

of

however,

rests on

an

mainstreaming.

choosing

the least

701 F.2d at 230.

Nor

cooperative procedures among

the

support

appellants'

a placement decision

position.

The

in New Hampshire law

provide for involving many interested

as in

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

particular

school

that their

private school are

district

restrictive.

it

who believe

just

entitled to be

because

decisionmaker in terms

Roland M.,
_________

910 F.2d at

place on this

benefits

to

school

is

less

was less restrictive,

deemed appropriate by an

of educational benefit.

See
___

993 ("To determine a

particular child's

continuum, the desirability of

mainstreaming must

in concert

improvement.

attend a

reimbursed by the

private

to be a placement

authorized

be weighed

that

Even if the private school

would still have

chid should

with the

Act's

[Placement] requires

be gained

benefit/least restrictive

or

a balancing of

lost on

fulcrum.").

-13-

mandate for

both

sides of

In this

educational

the marginal

the maximum

case, when

the

required balancing is taken into

supports

the district

account, the evidence of record

court's decision

that

the Milford

High

placement strikes a permissible balance.

The

judgment of the

costs to appellee.

district court is

AFFIRMED, with

-14-