Dale M. his mother v. Education Bradley-Bourbonnais H.S.

• Decision Date: 12 January 2001
• Docket Number: Nos. 98-2682,No. 307,98-2819,307,s. 98-2682
• Parties: (7th Cir. 2001) Dale M., by his mother and next friend, Alice M., Plaintiffs-Appellees, Cross-Appellants, v. Board of Education of Bradley-Bourbonnais High School District, et al., Defendants-Appellants, Cross-Appellees. & 99-1817
• Court: U.S. Court of Appeals — Seventh Circuit

Page 813

237 F.3d 813 (7th Cir. 2001)

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.

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

In the United States Court of Appeals For the Seventh Circuit

Argued June 7, 2000

Decided January 12, 2001

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

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...