          UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

          -----------------------------------.
          Capistrano Unified School          |
          District,                          |
                    Plaintiff-Appellant,     |
                                             |
                    v.                       |
                                             |
          Jeremy Wartenberg, by and through  |   No. 92-56119
          His Parents, Wayne & Charlene      |
          Wartenberg, in Their Individual    |      D.C. No.
          Capacity and on Behalf of Jeremy   |   CV-91-0141-AHS
          Wartenberg; California Department  |
          of Education; California           |      OPINION
          Superintendent of Public           |
          Instruction,                       |
                    Defendants-Appellees.    |
          -----------------------------------'

          -----------------------------------.
          Capistrano Unified School          |
          District,                          |
                    Plaintiff-Counter-       |
                    Defendant-Appellant,     |
                                             |
                    v.                       |
                                             |
          Jeremy Wartenberg, by and through  |
          His Parents, Wayne & Charlene      |
          Wartenberg, in Their Individual    |   No. 92-56312
          Capacity and on Behalf of Jeremy   |
          Wartenberg; California Department  |      D.C. No.
          of Education; California           |   CV-91-0141-AHS
          Superintendent of Public           |
          Instruction; McGeorge School of    |
          Law; Marguerita Fa-Kaji,           |
                    Defendants-Appellees,    |
                                             |
                    and                      |
                                             |
          Wayne Wartenberg; Charlene         |
          Wartenberg,                        |
                    Counter-Defendants-      |
                    Appellees.               |
          -----------------------------------'

                 Appeals from the United States District Court
                     for the Central District of California
                Alicemarie H. Stotler, District Judge Presiding

                              Argued and Submitted
                    February 2, 1994 - Pasadena, California

                               Filed July 5, 1995
          -------------------------------------------------------------
          Before:   James R. Browning, Warren J. Ferguson and
                    Andrew J. Kleinfeld, Circuit Judges.

          Opinion by Judge Kleinfeld; Dissent by Judge Ferguson
          -------------------------------------------------------------
                                   SUMMARY
          -------------------------------------------------------------

                 Individual Rights/Disabilities/Government Law

          The court of appeals affirmed a district court judgment.  The
          court held that the district court properly reviewed a
          decision of a hearing officer under the Individuals with
          Disabilities Education Act (IDEA), where the court received
          additional evidence, exercised its discretion to give the
          hearing officer's thorough report substantial deference, and
          made its own independent judgment that a preponderance of the
          evidence supported the the hearing officer's finding and
          conclusion.

          Jeremy Wartenberg did badly in school and began receiving
          special education services in second grade.  In seventh
          grade, his parents, appellees Wayne and Charlene Wartenberg 
          (the Wartenbergs), hospitalized Jeremy because of his 
          aggressive, violent behavioral problems.  A neuropsycho-
          logist's impression was that Jeremy's misbehavior was caused
          by a neurological abnormality.  A physician specializing in
          adolescent medicine thought Jeremy's failings were caused
          both by the way he behaved and by "neurochemical
          contributors."  Jeremy returned to school and continued to do
          very badly.

          Jeremy's junior high school gathered a team to develop an
          individualized education program (IEP).  The team authorized
          Jeremy to spend one period each day with a research
          specialist.  Despite failing classes, Jeremy was passed on to
          Capistrano High School.  The school crafted a new IEP that
          included an increase in the number of hours spent each day
          with a resource specialist, but this did no good.  The school
          created another special education program which included four
          periods each day in a special education class and one period
          per day with a resource specialist.  After Jeremy flunked
          every course, the school created another IEP which
          _decreased_ the attention he was scheduled to received.

          The Wartenbergs refused to consent to the decrease in
          assistance and exercised their right to call for a due
          process hearing to review appellant the Capistrano Unified
          School District's decision.  The Wartenbergs also took Jeremy
          out of the public high school and put him at the Mardan
          Center of Educational Therapy, a private but state certified
          school.

          At the due process hearing, the District claimed its proposed
          IEP was appropriate.  The Wartenbergs claimed the IEP was
          inadequate, that Mardan was appropriate and that they were
          entitled to reimbursement of the tuition and fees they spent
          for Mardan, and the attorney's fees necessary to prevail with
          their claims.  The District's main expert witness, the school
          psychologist who had assessed jeremy, thought that ascribing
          jeremy's poor performance to some neurochemical deficiency
          was overly speculative.  The school psychologist apparently
          believed that Jeremy's poor performance could be attributed
          to a conduct disorder.   Jeremy's special educational teacher
          testified that he thought the cause of Jeremy's failure was
          "oppositional behavior."  After ten days of testimony and
          examining exhibits, the hearing examiner resolved the case in
          favor of the Wartenbergs.  The examiner concluded that
          Jeremy's school failure was caused primarily by his attention
          deficit disorder, not willful bad conduct, and that the two
          causes could not be separated out.  She also concluded that
          the District's IEP was not appropriate for Jeremy, and that
          Mardan was.  She directed the District to pay Jeremy's
          parents for what they had spent on tuition and transportation
          for Mardan.

          The District filed an action in the district court for review
          of the hearing officer's decision.  The Wartenbergs sought
          attorney's fees.  The district court considered the
          administrative record from the hearing officer and received
          additional evidence presented in the form ot affidavits and
          exhibits.  The district court considered Jeremy's
          performance at Mardan subsequent to the hearing officer's
          decision and found that Jeremy had shown "demonstrable
          improvement."  The court also took notice of a Department of
          Education memorandum which came down after the
          administrative proceeding.  The memorandum stated that
          children with "attention deficit disorder" should receive
          special education under federal legislation.  The district
          court adopted the findings of the hearing officer, concluding
          that Jeremy's parents had properly disagreed with  the
          District's proposed program.  The court awarded attorneys'
          fees to the Wartenbergs.

          The District appealed, contending, among other things, that
          the district court misunderstood how it was to review the
          administrative determination and gave too much deference to
          the hearing officer's determination.

          [1]  The IDEA provides an unusual formulation of the standard
               for district court review of an administrative decision.
               The statute tells the court to "hear additional
               evidence" outside the administrative record and then
               base its decision "on the preponderance of the
               evidence."

          [2]  If the district court tried the case anew, the work of
               the hearing officer would not receive "due weight," and
               would be largely wasted.

          [3]  The district court's independent judgment is not 
               controlled by the hearing officer's recommendations, but 
               neither may it be made without due deference.

          [4]  In this case, the district court did what it was 
               supposed to do.  The district judge received additional
               evidence.  The hearing officer's report was especially
               careful and thorough, so the judge appropriately 
               exercised her discretion to give it quite substantial 
               deference.  The judge made her own independent judgment
               that a preponderance of the evidence supported the 
               hearing officer's finding and conclusion, and so reached 
               the same conclusions.

          [5]  The record supported the hearing officer's and district
               judge's independent conclusions that Jeremy's failure at
               school was caused by specific learning disabilities, not 
               a social maladjustment, and that his learning disorder 
               was "primarily the result of emotional disturbance" or 
               other non-covered causes.

          [6]  There was a preponderance of evidence for the
               proposition that Jeremy's social maladjustment could not 
               be separated out from his organic disorder and that his 
               misconduct was primarily caused by his organ disorder
               rather than a non-covered problem.

          [7]  Commingling causes such as in Jeremy's case are covered,
               where the hearing officer and district court properly
               determine on a preponderance of the evidence that the
               learning disabilities are not "primarily" the result of
               a non-covered cause.

          [8]  Thus, Jeremy was eligible to receive services under the 
               terms of the IDEA.

          [9]  A preponderance of the evidence supported the hearing 
               officers' and the district court's finding that the IEP 
               developed by the District did not meet Jeremy's needs.
               It would have moved him around too much between classes, 
               assigned him to too many teachers, and would give him 
               insufficient structure.

          [10] The evidence was substantially uncontradicted that the 
               services in Jeremy's case would not conform to goals 
               stated in his IEP.

          [11] Thus, the district court's determination that the 
               District's proposed placement was not an appropriate 
               placement, was affirmed.

          [12] The hearing officer made findings, which were properly 
               upheld by the district court on a preponderance of the 
               evidence standard, that Mardan was an "appropriate" 
               placement within the meaning of the IDEA.

          [13] The evidence overwhelmingly supported a rejection of
               "mainstreaming."

          [14] Thus, the award of the costs of tuition for and
               transportation to Mardan was not in error.

          [15] The district did not err in finding that an award of 
               attorney's fees was appropriate in this case.  The
               Wartenbergs won more favorable decision than was offered 
               in the District's prior settlement offer.

               Circuit Judge Ferguson dissented, stating that the
               hearing officer, district court and majority erred as a
               matter of law in concluding that a student's behavioral
               problems which are not caused by any specific learning
               disability can require the public school system to pay
               for private schooling.

                                   COUNSEL

          Jane  Slenkovich (Argued), and Eliza Walendzik (On the
          Briefs), Law Offices of Jane E. Slenkovich, Saratoga,
          California, for the plaintiff-appellant.

          Joan K. Honeycutt, Tustin, California, for the defendants
          appellees.

                                   OPINION

          KLEINFELD, Circuit Judge:

          This case requires us to determine how a district court is
          supposed to review the decision of a hearing officer under
          the Individuals with Disabilities Education Act, 20 U.S.C.
           140 et seq., and whether the services the school district
          offered in this case satisfy the Act's requirement that
          each child be afforded a "free appropriate public
          education."  20 U.S.C  1401 (a)( 18).


                                 I. FACTS

          The dispute in this case is about whether the school district
          must pay the private school tuition which Jeremy Wartenberg's
          parents incurred for him and their attorneys' fee.  Under the
          Individuals With Disabilities Education Act, the answer to
          the question depends on whether the reason Jeremy Wartenberg
          did poorly at school was misbehavior or a learning
          disability.  If the decisions below finding that disability
          caused Jeremy's school failure are correct, then we must
          determine whether the program the public school developed for
          him was appropriate.  The result turns largely on whether the
          district court applied the proper standard of review to the
          administrative determination.  The facts were developed in
          ten-day long hearing before a hearing officer and are 
          summarized below.

          When these proceedings began, Jeremy Wartenberg was a 
          16-year-old boy.  He had always done very badly in school
          Various psychologists and counselors diagnosed him as having 
          both 'attention deficit disorder" and a "conduct disorder.
          He began receiving special educational services in second 
          grade, based on what the school counselors called "visual 
          motor integration" and "visual closure deficits."

          In seventh grade, his parents hospitalized Jeremy for several 
          months at College Hospital because of his aggressive, violent 
          behavioral problems, including violent and dangerous attacks 
          on his mother and cruelty toward his baby brother, setting 
          fires, shoplifting and lying.  Jeremy had taken Ritalin(1)
          since age four, but it had not helped.  In a report following
          psychiatric and mental status examination of Jeremy, the 
          hospital psychiatrist noted that Jeremy's intelligence seemed 
          to be average, but his "thought content revealed flight of 
          ideas" and his "insight and judgment were poor."

          At the hospital, Jeremy was given an electroencephalogram, 
          and his results were abnormal.  The neuropsychologist's
          impression was that his misbehavior was caused by a 
          neurological abnormality, which might have resulted from a 
          high fever and convulsion when Jeremy was an infant.  The
          doctor concluded that:

               Although clearly the patient does not exhibit any severe 
               neurophysiological deficits, there does appear to be an 
               underlying neurological/cognitive basis to his 
               behavioral and emotional disturbances.  This may be
               related to his early experience of roseola and febrile 
               seizures at age two, which has contributed to a life 
               long history of hyperactivity, difficulties with 
               learning, and difficulties with controlling behavioral 
               impulses.  The data suggests a right anterior type of
               brain dysfunction and anterior frontal lobe functions 
               seem to be at least mildly impaired.  This data needs to
               be corroborated  with  further  electrophysical studies.
               _The_patient_certainly_does_require_a_very_structured
               learning_environment_and_medications_need_to_be_closely
               considered_by_the_attending_physician_for_both_purposes
               of_improving_attention_span_and_problem_solving_skills,
               and_to_rule_out_the_existence_of_some_sort_of
               subclinical_seizure_problem.

          (emphasis added).

          During the same time period, Jeremy saw a physician 
          specialist specializing in adolescent medicine, who thought 
          Jeremy's failings were caused both by the way he behaved and 
          by "neurochemical contributors:"

               Jeremy's problems with distractibility, impulsiveness,
               and emotional lability are extreme and have both
               behavioral and neurochemical contributors.

               I_feel_that_a_full-time_residential_school_setting_at
               the_present_time_would_best_fit_Jeremy's_needs.

          (emphasis added).

          On discharge from the hospital, Jeremy's treating 
          psychologist wrote that, during his stay, Jeremy had
          "demonstrated extremely poor impulse control or ability
          to attend and concentrate." The doctor characterized
          Jeremy's hospital stay as "stormy," with "numerous angry
          outbursts, great difficulty following directions, labile
          moods fluctuating between periods of extreme anger and
          aggressiveness and periods of deep depression." The
          psychologist concluded that without an institutional
          placement, at least during the day, the boy would get no
          better:

               It is clear from our assessment and his past history 
               that this young man is presenting emotionally, 
               intellectually and socially much younger than his 
               chronological 14 years.  At this point it appears that 
               in order to avoid further significant morbidity and 
               mortality as well as decrease the risk for future 
               multiple acute hospitalizations that _Jeremy_will_ 
               _require_a_controlled,_structured,_intense_day_ 
               _treatment,_or_residential_placement._ This type of
               environment will impact positively on his long term
               prognosis and offer him the opportunity to develop the
               behavioral controls, psychological mechanisms as well as
               educational and vocational training needed so that he
               can develop into an independently functioning adult.
               _Without_this_structure_this_development_will_most_
               _likely_fix_at_the_present_point_and_as_has_been_
               _indicated,_this_young_man_will_continue_to_experience_
               _significant_problems.

          (emphasis added).

          After his hospitalization, Jeremy returned to school and
          continued to do very badly.  Despite the clear indications
          from all treating physicians that Jeremy needed a very
          structured educational environment, the school initially
          placed Jeremy in regular classes, where, by the next fall, he
          was failing all of his eighth-grade classes.

          In response to his failure in the regular class setting, his
          junior high  school gathered a team to develop an
          individualized education program.  "The team determined
          that Jeremy had a "disorder in visual processing and
          attention deficit result[ing] in [a] significant
          discrepancy between achievement and ability in math." They
          authorized Jeremy to pend one period each day with a
          research specialist, who would provide specific assistance
          "in math, written language and organizational skills." Jeremy
          failed English and physical education, but was passed on from
          junior high school to the ninth grade, high school, anyway.

          The move to Capistrano High School did not improve Jeremy's
          performance.  He continued to do very badly in class, so the
          school crafted a new "individualized education program" that
          included an increase in the number of hours spent each day
          with a "resource specialist." It did no good.  His ninth
          grade report card after first semester showed grades of D+, F
          F, D, D-, and F.  The school then created another special
          education program for him, which included four periods each
          day an a special education class and one period per day with
          a resource specialist, who would work on the continued
          discrepancy between Jeremy's ability and performance in math
          and written language.  Despite the school's continued efforts
          Jeremy failed all six classes.

          After he flunked every course in his first year of
          high school, the school created yet another "individualized
          educational program" for him.  This time, the new program
          decreased the attention Jeremy was scheduled to receive.  His
          time in the special educational setting was reduced to three
          periods per day and the description of his specific learning
          disability was modified to eliminate any reference to a
          deficit in math abilities.

          The Wartenbergs thought this was a bad plan.  They refused to
          consent to this decrease in assistance, and exercised their
          right under the controlling federal legislation to call
          for an impartial due process hearing" to review the school
          district's decision.  20 U.S.C.  1415(b).  They also took
          Jeremy out of the public high school, and put him at the
          Mardan Center of Educational Therapy.  The Mardan Center is a
          private but state certified school which Jeremy's parents
          thought could help him more than the public school would
          under the proposed individualized education program."  This
          placement is the basis for the dispute in this case.

          The school claims its proposed "individualized education
          program" was appropriate.  Jeremy's parents claim that the
          "individualized education program" was inadequate, that the
          Mardan Center was appropriate, and that they are entitled to
          reimbursement of the tuition and fees they spent for the
          Mardan Center, and the attorneys' fees necessary to prevail
          in their claims.  The "due process hearing" was a ten day
          presentation of evidence to resolve this dispute.

          The school district's main expert witness, the school
          psychologist who had assessed Jeremy, disagreed to some
          extent with the evidence summarized above.  He thought that
          ascribing Jeremy's poor performance to some neurochemical
          deficiency was overly speculative, because the Ritalin(1)
          therapy did not provide the relief from symptoms he would
          have expected if Jeremy had a neurochemical imbalance.  In
          his opinion although Jeremy's performance was far below his
          ability, his learning disability was not severe.  He
          attributed Jeremy's bad school performance largely to
          "failure to do the work, cooperate, and truancies." He
          thought Jeremy's attention deficit disorder was "mild":

               He has a mild attention deficit which makes it mildly 
               difficult for him to maintain attendance on task.  That 
               means that some changes to the environment are in order.  
               At times, especially in areas where he is lower 
               functioning academically, there will be maybe a need for 
               a small group setting.  His academic programming needs 
               to be individualized in those areas.  And he needs more 
               feedback.  He needs - we need to ensure that he gets 
               clear commands and directions from the teacher, which 
               are typical, you know, kind of remedial techniques for 
               students who have [attention deficit disorder].

          The school psychologist apparently believed that Jeremy poor
          performance could be attributed to a conduct disorder.  It
          became clear in the school psychologist's testimony that the
          term "conduct disorder," as he used it, described a pattern
          bad conduct, rather than diagnosing some organic disorder
          which caused the bad conduct:

               Q:  And with respect to conduct disorder then, would you
               describe to use what a conduct disorder is?

               A:  Well it is also a series of criteria.  And the way
               that one determines that one has a conduct disorder is
               to determine that they have at least three of the
               thirteen criteria.  It is very similar in nature to
               what's called "Oppositional Defiant Disorder", the
               difference being that in oppositional defiant disorder
               the basic rights of others and major age appropriate
               societal norms are not violated as they are in conduct
               disorder.

               Conduct disorder, for example, you might have someone 
               who is more aggressive towards others, who is breaking
               rules, who is very difficult to manage.  And I agree
               with th College Hospital admittance and discharge
               diagnosis of severe conduct disorder as being one of the
               primary problems for him.

                                   * * *

               Q:  With respect to people who have conduct disorder,
               when a person has the diagnosis of conduct disorder,
               order, if you know, does that imply or does that mean
               that his conduct is out of his control or within his
               control?

               A:  Generally speaking the conduct is under his control
               and he is aware of the fact that it is wrong.  But he is
               more interested in meeting his own short term needs than
               any long term needs of others or himself.

          He concluded that there was "a very large element of
          willfulness about whether [Jeremy] changes or not."

          Jeremy's special education teacher for most of his school day
          was the other witness of considerable importance on the
          school district side.  He testified that "the squeaky wheel
          gets the grease," and "Jeremy was the squeaky wheel since he
          was in my program." He thought the cause of Jeremy's failure
          was his oppositional behavior."  He thought that the
          appropriate goals and objective for Jeremy were "just too
          many for one particular teacher to start developing,
          especially with the attitude that Jeremy exhibits."

          In addition to these witnesses, a great deal of other
          evidence came in on both sides.

          The hearing examiner issued a 26 page single-spaced opinion, 
          after hearing the ten days of testimony and examining the 
          extensive exhibits.  She reviewed the evidence in detail, and 
          made findings of fact and conclusions of law resolving the 
          case in favor of the Wartenbergs.  Construing the Supreme 
          Court's decision in Board of Education of the Hendrick Hudson 
          Central Sch. Dist. v. Rowley, 458 U.S. 176 (1982), hearing
          officer defined her primary decision-making task on the issue 
          of proper placement as follows:

               In deciding whether the District has met the requirement of
               providing Jeremy with a free appropriate public education, it
          is thus necessary to determine whether the placements it has
          offered include:  

                    (1) instruction that is specially designed to meet 
                        his unique needs and that would permit him to 
                        benefit educationally;

                    (2) sufficient support services to permit him to 
                        benefit educationally from the instruction; and

                    (3) instruction and services that comport with the
                        goals and objectives on his IEP.

          She concluded that Jeremy's school failure was caused
          primarily by his attention deficit disorder, not willful bad
          conduct, and that the two causes could not be separated out.
          She also concluded that the school district's "individualized
          education program" was not appropriate for Jeremy, and that
          the Mardan Center was, so she directed the school district to
          pay Jeremy's parents for what they had spent on tuition and
          transportation for the Mardan Center.  Here is a summary of he
          critical findings of fact:

          1.  Some of Jeremy's misbehavior might be due to his conduct 
              disorder, rather than his specific learning disability, 
              but his deficit in attention was a substantial cause of 
              his behavioral problems, and Jeremy's social and 
              emotional problems could not be separated out from the 
              symptoms associated with his specific learning 
              disability.

          2.  The testimony of the school district's and the 
              Wartenberg's experts showed that Jeremy's unique needs 
              included:  frequent feedback from a teacher, clear 
              commands; a structured school environment; a small class 
              size; a small campus; and consistency in the educational 
              setting.

          3.  The school district's proposed placement did not meet the 
              first part of the Rowley test, because it could "result 
              in Jeremy having from four to six different teachers ...  
              and would not provide him with the level of structure, 
              individual attention and consistent behavioral management
              that be need[ed] in order to benefit from his education."

          4.  The school district's proposed placement also failed the 
              third prong of the Rowley test, which requires that the 
              instruction and services offered comport with the goals 
              and objectives on the student's individualized education 
              program.  The hearing officer, relying in large part on 
              the testimony of school district teacher DeGeer, found 
              that three periods each day with a resource specialist 
              would never be sufficient to work on all of the goals 
              listed in the fifteen-page educational program developed 
              for Jeremy.

          5.  The Mardan Center did meet the Rowley test and would be 
              an appropriate placement for Jeremy.  The bearing officer 
              made this determination based on the facts that the 
              Mardan classes were better staffed than those at the
              school district; offered education with I I children in
              Jeremy's age and ability group; emphasized immediate
              feedback; and achieved consistency by not forcing Jeremy
              to change teachers several times each day.

          6.  The Wartenbergs are entitled to reimbursement for the
              regular school year education Jeremy received at the
              Mardan Center, plus transportation costs.

          The school district filed this action in district court,
          pursuant to 20 U.S.C.  1415, for review of the bearing
          officer's decision.  The Wartenbergs sought attorneys' fees.
          Both parties moved for summary judgment.

          The district judge considered the administrative record from 
          the hearing officer, and received additional evidence
          presented in the form of affidavits and exhibits.

          The school district had asked the district court to retry the
          case, at least on whatever disputed issues she might find in
          the record.  Its attorney, though, could not think of any
          additional evidence she wished to introduce at a retrial
          beyond what was n the record.

               The Court:  And I guess what I'm saying is, is there yet
               some additional evidence that this Court doesn't have
               that's going to be different if there is half a day of
               trial? That's what I'm really trying to find out.

               Ms.  Slenkovich [school district's attorney]:  I can't
               think of any.

               Court:  The parties have been very thorough, and
               that's why the question arises.

               Slenkovich;  I can't think of any evidence that we don't
               have in here off the top of my head.

               Court:  Let me ask the same question of Miss
               Honeycutt [attorney for the Wartenberg.s], as well as
               Miss Eckrem.

               Honeycutt:  If the Court feels there is an issue that the
               Court needs more information on, then, yes, it would be
               appropriate to call us back to bring evidence on that
               issue or issues.

               As it stands right now, I feel confident that the
               evidence necessary to make the decision is before the
               court.

               Court: That's certainly my sense of the state of the
               record, given everything that we have here.

               But if I undertake to decide this case in its procedural
               fashion, as the parties now present it, come up with an
               issue that may actually fall within the definition of
               a material triable issue, and yet this record, in fact,
               has evidence bearing both ways on that point, if I
               proceed to then make that decision, will that be in
               violation of anybody's rights?

               Honeycutt:  No.

               Court:  I don't think it will either.

                                        ***

               Court:  Is there anything else that any of the parties
               wanted to call to my attention then before I submit all
               of these matters for decision? District counsel?

               Slenkovich:  Yes.

               We do not perceive this so much as a Rule 56 [summary
               judgment] motion as a plenary trial - our appeal.  In
               other words, we believe that you are to - it appears to
               us that you are to rethink or retry the case, as it
               were, upon reading the transcript and all of the record.

               Thank you.

               Court:  All right, thank you, Miss Honeycutt?

               Honeycutt:  Nothing further, your Honor.

               Court: And Miss Eckrem?

               Eckrem: Nothing further.

          The district judge reviewed the evidence before the hearing
          officer and considered additional evidence before
          adopting the findings of the hearing officer.  She considered
          his performance at Mardan subsequent to the hearing
          officer's decision, and found that Jeremy had
          shown "demonstrable improvement" at Mardan.  She also took
          notice of a Department of Education memorandum which came
          down subsequent to the administrative proceeding.  The
          memorandum said that children with "attention deficit
          disorder" should receive special education under the
          federal legislation.  She concluded that Jeremy's parents had
          properly disagreed with the school district's proposed
          program, and upheld the hearing officer's conclusions.  Her
          order recited that "[t]here are no disputed facts
          necessary and material to the issue of whether or not
          [the school district] offered Jeremy Wartenberg an
          appropriate placement."  After reviewing both the hearing
          officer's decision and record and the additional factual
          materials, she upheld the hearing officer's decision.  The
          school district appeals.

                              
                              II. ANALYSIS

          A.   Mootness

          The Wartenbergs urge that we lack jurisdiction over the 
          appeal except for the attorneys' fees issue.  The reason is 
          that Jeremy has now graduated from high school and been 
          awarded diplomas by both schools, Mardan and the public 
          school.  They argue that he is no longer entitled to the 
          protections of the Act, so the case is moot under the 
          principles of Honig v. Doe, 494 U.S. 305, 317-19 (1998).

          We reject the mootness challenge.  The Wartenbergs' claim for
          reimbursement for the Mardan Center tuition is a live
          controversy.  So, as they concede, is the claim for
          attorneys' fees.  This case is not moot.  Clovis Unified Sch.
          Dist. v. California Office of Admin. Hearings, 903 F.2d 635,
          641 (9th Cir. 1990).

          B.   District Court Review

          The school district argues that the district court
          misunderstood how it was to review the administrative
          determination, and gave too much deference to the hearing
          officer's determination.  The school district's argument
          appears to be that the district court should review the
          findings _de_novo_, abet on the administrative record and
          such additional submissions as were made in district court.

          [1] The mode of review by the district court is puzzling and
          gives rise to a principal dispute in this case.  The statute
          provides an unusual formulation of the standard for district
          court review of an administrative decision.  It tells the court
          to "hear additional evidence" outside the administrative
          record and then base its decision "on the preponderance of
          the evidence":

               In any action brought under this paragraph the court
               shall receive the records of the administer
               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).

          Ordinarily one expects review of an administive decision to
          be limited to the record before the administive body, and for
          the court to be required to affirm if substantial evidence on
          the whole record supports the administive determination.
          5 U.S.C.  706;  Ojoi Unified Sch. Dist. v. Jackson,
          F.3d 1467, 1471 (9th Cir. 1993).

          We have the benefit of controlling Supreme Court authority 
          construing this unusual judicial review provision.  In 
          Rowley, 458 U.S. 176 (1982), the Court held that the
          preponderance of the evidence standard in the statute "is by 
          no means an invitation to the courts to substantiate their 
          own notions of sound educational policy for those of the 
          school authorities which they review." Id. at 206.  The 
          requirement that the district court receive the hearing 
          officer's record "carries with it the implied requirement 
          that due weight shall be given to these proceedings." Id.  
          The district court should review for procedural compliance 
          with the statute, and for whether the program is reasonably 
          calculated to enable the child to receive educational 
          benefits.

               Therefore, a court's inquiry in suits brought under
                1415(e)(2) is twofold.  First, has the State complied
               with the procedures set forth in the Act? And second, is
               the individualized educational program developed through
               the Act's procedures reasonably calculated to enable the
               child to receive educational benefits? If these
               requirements are met, the State has complied with the
               obligations imposed by Congress and the courts can
               require no more.

          Id. at 206-07.

          The proposition that the courts must give "due weight raises 
          the question of how much weight is "due."  We held in Gregory 
          K. v. Longview Sc. Dist., 811 F.2d 1307, 1311 (9t Cir. 1987), 
          that "[h]ow much deference to give state educational agencies 
          ... is a matter for the discretion of the Courts.  Following 
          a First Circuit decision, we held in _Gregory_K._ the the 
          courts are to consider the findings "carefully and endeavor 
          to respond to the hearing officer's resolution of each 
          material issue," but the court "is free to accept or reject 
          the finding in part or in whole."  Id.  (quoting Town of 
          Burlington Department of Education, 736 F.2d 773, 792 (1st 
          Cir. 1984 ) aff'd, 471 U.S. 359 (1985)).

          When exercising its discretion to determine what weight to
          give the hearing officer's findings, one criterion we have
          found useful is to examine the thoroughness of those findings
          The amount of deference accorded the hearing officer's
          findings increases where they are "thorough and careful."
          Union Sc. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir. 1994).
          We review the district court's factual determinations for
          clear error.  Ash v. Lake Oswego Sch. Dist., 980 F.2d 585,
          588 (9th fir. 1992).  But we review _de_novo_ the ultimate
          determination of the appropriateness of the educational
          program.  Smith,  15 F.3d at 1524.

          [2] Our opinion in Ojai explores the difficulty of using : 
          summary judgment framework for what amounts to resolution of 
          conflicting evidence on the facts.  In that case, as in man) 
          under the Act, disputed issues of fact existed.  Likewise, in 
          the case at bar, the mixed question of the cause of Jeremy's 
          'school failure  was disputed.  Ordinarily summary judgment 
          could not issue, because of the genuine dispute.  But if the 
          district court tried the case anew, the work of the hearing 
          officer would not receive "due weight," and would be largely 
          wasted.  As the District of Columbia Circuit put it, 
          "[d]eference to the hearing officer makes sense in a 
          proceeding under the Act for he same reasons that it makes 
          sense in the review of an) other agency action - agency 
          expertise, the decision of the political branches ... to vest 
          the decision initially in our agency, and the costs imposed 
          on all parties of having still another person redecide the 
          matter from scratch." Kerkam v McKenzie, 862 F.2d 884, 887 
          (D.C. Cir. 1988).

          [3] Judge Canby pointed out in Ojai that what the court has 
          lone in that case really amounted to a trial _de_novo_ on a 
          stipulated record.  Ojai, 4 F.3d at 1472. This puzzling
          procedural problem arises whenever the district court 
          adjudicates administrative appeals, because the Federal Rules 
          of Civil Procedure do not plainly speak to how such appeals 
          should be handled.  It is hard to see what else the district
          court could do as a practical matter under the statute except
          read the administrative trial record consider the new
          evidence, and make an independent pendent judgment based on a
          preponderance of evidence and giving due weight to the
          hearing officer's determinations.  The district court's
          independent judgment is not controlled by the hearing
          officer's recommendations, but neither may it be made without
          due deference.  Because this appears to be what Congress
          intended under the Act, we conclude that it is the right
          thing to do, even though it does not fit well into an
          pigeonhole of the Federal Rules of Civil Procedure.  Though
          the parties may call the procedure a "motion for summary
          judgment" in order to obtain a calendar date from the
          district court's case management clerk, the procedure is in
          substance an appeal from an administrative determination, not
          a summary judgment.

          [4] We conclude that the district court in the case at bar
          did what it was supposed to.  The judge received additional
          evidence.  The parties had no more to offer.  The hearing
          officer's report was especially careful and thorough,
          so the judge appropriately exercised her discretion to give
          it quite substantial deference.  The judge made her own
          independent judgement that a preponderance  of the evidence
          supported the hearing officer's findings and conclusions, and
          so reached the same conclusions.

          
          C.   Appropriate Placement

               1.   Eligibility Under the Act

          If Jeremy's failure at school resulted from misconduct, not a
          disorder, then he would not be entitled to have the school
          pay for his Mardan Center tuition and transportation.
          Likewise, if his failure was caused by a disorder, but the
          school proposed individualized education program was
          appropriate or Mardan Center was not appropriate, he would
          not be so entitled.

          Under the Act, states may receive federal assistance for
          education of "children with disabilities" if "[t]he state
          has in effect a policy that assures all children with
          disabilities the right to a free appropriate public
          education.  "  20 U.S.C.  l412(l).  Some learning disorders
          count as "specific learning disabilities," and some do not:

               (a)(I)(A)  The  term "children with disabilities" means
                          children -

                         (i) with mental retardation, hearing 
                             impediments including deafness, speech or 
                             language impairments, visual impairments 
                             including blindness, serious emotional 
                             disturbance, orthopedic impairments, 
                             autism, traumatic brain injury, other 
                             health impairments, or specific learning 
                             disabilities; and

                         (ii) who, by reason thereto, need special
                              education and related services.

                                   ***

                    (a)(15) The term "children with specific learning
                            disabilities" means those children who have
                            a disorder in one or more of the basic
                            psychological processes involved in
                            understanding or in using language,
                            spoken or written, which disorder may
                            manifest itself in imperfect ability to
                            listen, think, speak, read, write, spell,
                            or do mathematical calculations.  Such
                            disorders include such conditions as
                            perceptual disabilities, brain injury,
                            minimal brain dysfunction, dyslexia, and
                            developmental aphasia.  Such term does not
                            include children who have learning
                            problems which are primarily the result
                            of visual, hearing, or motor disabilities,
                            of mental retardation, of emotional
                            disturbance, or of environmental,
                            cultural, or economic disadvantage.

          20 U.S.C.  1401(a)(I), (15) (emphasis added).

          So  a child with a specific learning disability caused by :
          number of factors will qualify for assistance, while a child
          with a specific learning disability which is "primarily
          result of [non-"serious"] emotional disturbance" will not.
          U.S.C.  1401(a)(15); 34 C.F.R.  300.7(a)(lO).

          Once it is determined that a child suffers from a cove
          "learning disability," he is entitled to receive a "free
          appropriate public education." In order to comply with  the
          requirement of providing a free appropriate public
          education, the school district must provide special
          education and related services that -

                    (A) have been provided at public expense, under
                       public supervision and direction, and without
                       charge,

                    (B) meet the standards of the State
                        educational agency,

                    (C)  include an appropriate preschool, elementary,
                         or secondary school education in the State 
                         involved, and

                    (D) are provided in conformity with the
                       individualized education program required under 
                       [20 U.S.C. 1414(a)(5).

          20 U.S.C. 1401(18).

          As construed by Rowley, a child receives a free appropriate
          public education if the program

               (1)  addresses the child's unique needs,

               (2) provides adequate support services so the child can 
                   take advantage of the educational opportunities, and

               (3) is in accord with the individualized education 
                   program.  Rowley, 4S8 U.S. at 188-89.  If Jeremy was
                   eligible for assistance under the terms of the Act, 
                   these provisions applied to him, and the school 
                   district was bound to address his unique needs in a 
                   manner that would afford him an opportunity to 
                   benefit educationally.

          [5] The record supported the hearing officer's and district
          judge's independent conclusions that Jeremy's failure at
          school was caused by specific learning disabilities, not mere
          social maladjustment, and that his learning disorder was not
          "primarily the result of emotional disturbance" or other
          non-covered causes.  34 C.F.R.  300.7(a)(lO).  The hearing
          officer and the district court found that Jeremy's disorder in
          attention is the processing disorder that is the primary
          cause of his specific learning disability." This conclusion
          was reached by the school district's expert, school
          psychologist Steve Gelsinger and was accepted by the
          hearing officer.  The testimony showed that Jeremy's bad
          behavior, including impulsiveness, rebellion  against
          authority, and poor performance absent immediate
          feedback, was, as the hearing officer put it, caused by his
          attention deficit disorder:

               Based on Mr.  Gelsinger's statement, as well as the 
               evidence discussed above, the Hearing Officer finds that 
               Jeremy's disorder in attention is the processing 
               disorder that is the primary cause of his specific 
               learning disability.

                                      ***

               The Hearing Officer finds that, while the evidence 
               indicates that Jeremy may have a conduct disorder which 
               results in some of his behavioral problems, Jeremy's 
               disorder in attention is a substantial cause of his 
               negative behaviors.  This finding is supported by the 
               testimony of Mr.  Lappin and Dr.  Baumgarten that many
               of Jeremy's negative behaviors stem from his 
               attention-deficit disorder and his resultant school 
               failure, depression, and feelings of inadequacy.  It is 
               also supported by Ms.  Flockton's testimony that Jeremy 
               has a fear of failure that results in his need for a 
               great deal of teacher time and attention.  THerefore, 
               the Hearing Officer finds that Jeremy's social and 
               emotional problems Are not _segregable_ from the
               learning process.

          Hearing Officer Decision at 19-20.

          [6] In reviewing this decision, the district judge was 
          required to be certain that it was correct; a "preponderance 
          of the evidence" is all that was required.  20 U.S.C.
           1415(e)(2).  There was a preponderance of the evidence for
          the proposition that Jeremy's social maladjustment could not 
          be separated out from his organic disorder, and that his 
          misconduct was primarily caused by his organic disorder 
          rather than a non-covered problem.

          [7] The Secretary of Education has resolved the problem of
          mixed causation.  That is where the child's learning problems
          are caused partly by covered learning disabilities, and 
          partly by non-covered matters such as willful bad behavior or 
          non- "serious" "emotional disturbance."  The child falls
          into the specific learning disability" category unless
          the learning problems are "primarily the result" of the
          non-covered causes.  34 C.F.R.  300.7(10).  Because of this
          administrative decision, commingled causes such as in
          Jeremy's case are covered, where the hearing officer
          and district court properly determine on a preponderance of
          the evidence that the learning disabilities are not
          "primarily" the result of a non-covered cause.

          So if, as the hearing officer found, Jeremy's learning
          disability was primarily caused by a covered disorder, he
          would not lose coverage simply because there existed a
          secondary cause that was not covered.  Nor would the hearing
          officer or court be obliged to sort out percentages.  Only if
          Jeremy's learning problems were "primarily" caused by
          non-covered causes would he lose coverage.

          The district court properly took account of the United States 
          Department of Education clarification of its policy regarding 
          the education of children with attention deficit disorder.  
          In a letter to all chief state school officers, Assistant 
          Secretary of Education Robert Davila informed the schools 
          that attention deficit disorder is to be treated for purposes 
          of the Act as a specific learning disability.  The agency 
          here is entitled to deference in its interpretation of the 
          statute, because the interpretation is based on a permissible 
          construction of the existing statutory language.  See Chevron 
          U.S.A., Inc. v.  Natural Resource Defense Council, 467 U.S. 
          837, 842-43 (1984).

          [8] Because we find that Jeremy was eligible to receive
          services under the terms of the Act, we must review the
          district court's determination that the school
          district's proposed placement was not appropriate.

          Our dissenting colleague concludes that we, the district
          court, and the hearing officer have erred, because no
          evidence was introduced to show that Jeremy's school failure
          was caused by a covered disability rather than bad behavior
          which Jeremy could have controlled.  As we read the record, we
          must disagree.  Substantial evidence was presented on both
          sides, including the evidence summarized above, showing a
          physiological explanation for Jeremy's behavior.  Although a
          reasonable fact finder might have reached a different
          conclusion, we read the record as showing that the hearing
          officer meticulously analyzed the evidence, considered
          causation, and concluded that Jeremy's failure was caused
          primarily by his covered disability.

          The hearing officer specifically addressed the question of
          "what unique needs arise from Jeremy's handicapping
          condition" and concluded that "Jeremy's impulsivity is a
          hallmark symptom of attention-deficit disorder and he
          exhibits a lot of the negative characteristics, such as
          rebellion against authority, of a child whose
          attention-deficit disorder results in school failure."  She
          also found that "Jeremy's disorder in attention is the
          processing disorder that is the primary cause of his specific
          learning disability."

          The district court reviewed the record, considered
          additional evidence, and reasonably concluded that a
          preponderance of evidence compelled the conclusion reached by
          the hearing officer.  As is explained above, we are to review
          the factual determinations for clear error, and the
          appropriateness of the educational program de _novo_, but
          giving "due weight to the hearing officer's determination.
          Under those standards, affirmance is required on this record.
          We intimate no view of our own on the desirability of the
          level of services compelled by Congress for students whose
          school failure is attributable in part to their own
          misbehavior.

          2.  Jeremy's Needs

          [9] We find that a preponderance of the evidence also 
          supported the hearing officer's and the district court's
          findings that the individualized education program developed
          by the school district did not meet Jeremy's needs.  It would
          have moved him around too much between classes, assigned him
          to too many teachers, and would give him insufficient
          structure.  As the hearing officer stated:

               School psychologist Gelsinger agreed that Jeremy needs
               frequent feedback and clear commands.  OCMH therapist
               Lappin testified that Jeremy needs a structured school
               environment or else he will make poor choices and be
               unable to pay attention.  Clinical psychologists Drs.
               Baumgarten and Harrington also supported Jeremy's need
               for a structured school environment, in terms of a
               small class size, a small campus, as well as a lot
               of feedback and consistency.

                                        ***

               The District's proposed placement may result in Jeremy 
               having from four to six different teachers (depending on
               whether he is placed with one, two, or three different
               resource specialists) and would not provide him with the
               level of structure, individualized attention, and
               consistent behavior management that he needs in order to
               benefit from his education.

          Hearing Officer's Decision at 20-21.

          The school district agreed that Jeremy needed consistency,
          but the individualized education program it developed would
          not give it to him.

          3.  Services That Meet the Goals

          The hearing officer also concluded that the school district's
          program did not give Jeremy enough special education time to
          meet the educational goals the district agreed were
          appropriate:

               The District's proposed placement also fails to meet the 
               third part of the Rowley test.  The third part of the
               Rowley test requires that the instruction and services 
               included in the District's proposed placement comport 
               with the goals and objectives on Jeremy's 
               [individualized education program].  The goals and 
               objectives on Jeremy's June 1990 [individualized 
               education program] were agreed to by both parties and 
               address a total of seven study areas: math, written 
               language, vocational, grapho-motor skills, study skills, 
               social skills, and socio-emotional on-task behaviors.  
               Mr.  DeGeer testified that the number of social and 
               emotional goals were extensive and that, even as a 
               special day class teacher who would teach Jeremy for 
               four periods, he would have to prioritize these goals in 
               order to determine which ones should be addressed first.  
               By contrast, the District's placement proposal of three 
               periods of RSP would only provide Jeremy with three 
               periods of special education each day in which to work 
               on all of these goals.

          Hearing Officer Decision at 21.

          [10] As the district court found, a preponderance of the
          evidence supported this finding.  Jeremy's own special
          education teacher conceded that the time was insufficient to
          achieve the educational goals which the school district
          agreed were appropriate for Jeremy.  Mr.  DeGeer said:

               Those are very good goals.  They've been developed
               exactly the way they should be in my opinion.  And I
               think there's just too many for one particular teacher
               right now to get those goals and make a plan.  I think
               they need to be shortened -not short- shortened but
               prioritized on which ones are important to the parent,
               which ones are important to the school, and develop the
               plan for the social and emotional goals and objectives.

          The Act says that a "free appropriate public education" must 
          offer the student services that are "in conformity with the 
          individualized education program .... "  20 U.S.C.  
          1401(18)(D); Rowley, 458 U.S. at 203.  The evidence was
          substantially uncontradicted that the services in Jeremy's 
          case would not conform to the goals stated in his 
          individualized education program.

          [11] Because the school district's proposed placement did not
          satisfy the Rowley test and the requirements of the Act, we
          affirm the determination of the district court that it was
          not an appropriate placement.  Normally that would end the
          matter, but in this case, the Wartenbergs are seeking
          reimbursement for unilaterally placing Jeremy at the Mardan
          Center during the pendency of this matter.

          4.  Placement at Mardan

          [12] The Supreme Court has held that parents may be 
          reimbursed for costs incurred in placing a child in "private 
          special education ... if the court ultimately determines that 
          such placement, rather than a proposed IEP, is proper under 
          the Act." Burlington School Comm. v. Massachusetts Dep't of 
          Educ., 471 U.S. 359, 369 (1985).  The hearing officer made
          findings, which were properly upheld by the district court on 
          a preponderance of the evidence standard, that Mardan met all 
          three Rowley criteria and was an "appropriate" placement 
          within the meaning of the Act.

               The testimony of Mardan's Executive Director David 
               Eisenman established that, at Mardan, Jeremy is in a 
               class with the same teacher the entire day, one aide, 
               and eleven other students, all of whom are within the 
               same age range and ability level as Jeremy.  According 
               to Dr. Ernsdorf, there are actually two teachers for
               Jeremy's class - one main teacher and one assistant 
               teacher.  Although Dr. Ernsdorf testified that the
               District offers a greater variety of vocational programs 
               than does Mardan, the testimony of Mr. Eisenman
               established that Jeremy's vocational goal of increasing 
               his awareness of vocational opportunities could be met 
               at Mardan. (Exhibit P- 139) The Hearing Officer finds
               most compelling the fact that, as testified to by both 
               Mr. Eisenman and Dr. Ernsdorf, a comprehensive
               behavior management plan is used with Jeremy at Mardan 
               such that he receives consequences the same day that he 
               either fails to do his homework or misbehaves.  With 
               regards to the third Rowley requirement, this approach 
               comports with the goals and objectives of Jeremy's lEP 
               in die area of study skills, social skills, and 
               social-emotional on task behaviors.

               The consistency of the behavior plan, as well as the 
               small class size and high student-teacher ratio that 
               Jeremy has at Mardan, also meets his unique needs for 
               individualized attention and structure that result from 
               his handicap.  Jeremy's summer school grades show that 
               he can benefit, and has benefited, from his education at 
               Mardan. (Exhibit P- 158) Therefore, the Mardan
               placement meets the first Rowley requirement of a 
               setting specially designed to meet Jeremy's unique needs 
               and a setting that would permit him to benefit 
               educationally.  Although there was not a great deal of 
               testimony with regards to the support services available 
               at Mardan, Mr. Eisenman mentioned that group counseling
               is available to the students there as part of the
               regular programs.  Therefore, given the finding above
               that Jeremy requires group counseling as a related
               service, the Hearing Officer finds that Mardan offers
               sufficient support services to permit him to benefit
               educationally.  Because the program designed for Jeremy
               at Mardan meets all three of the Rowley requirements,
               the Hearing Officer finds that Mardan is an appropriate
               placement for Jeremy and that the District is 
               responsible for funding his placement there.

          Hearing Officer decision at 22-23.

          So at Mardan, Jeremy had a small class with a high 
          teacher-student ratio, and immediate consequences when he 
          misbehaved or did not do his work.  And as the district judge 
          noted in her findings, Jeremy did better academically after 
          transferring to Mardan.  Academic success is a helpful 
          guidepost in determining the appropriateness of an 
          educational setting in meeting a students unique needs.  See 
          Rowley, 458 U.S. at 203.  A review of the record indicates
          that the district judge and the hearing officer were correct
          in finding that the Mardan Center provided an "appropriate"
          educational setting for Jeremy.

          The school district and the amicus argue that the placement
          at Mardan gave insufficient weight to "mainstreaming." The
          statute requires that state procedures provide for mixing
          disabled children with others "to the maximum extent
          appropriate," and that separate education be used only when
          education in regular classes "cannot be achieved
          satisfactorily:"

               [To] qualify for assistance, a state shall establish] 
               procedures to assure 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 not 
               disabled, and that special classes, separate schooling, 
               or other removal of children with disabilities from the 
               regular educational environment occurs only when the 
               nature or severity of the disability is such that 
               education in regular classes with the use of 
               supplementary aids and services cannot be achieved 
               satisfactorily.

          20 U.S.C.  1412(5)(B)(emphasis added).  To reach the result
          they did the hearing officer and the district court had to
          consider the appropriateness of the school's individualized 
          educational program so a fortiori they determined that under 
          that mainstreaming program, "education in regular classes 
          with the use of supplementary aids and services cannot be 
          achieved satisfactorily."

          [13] The evidence overwhelmingly supported this rejection 
          mainstreaming.  Jeremy was placed in regular classes in the 
          seventh grade and failed.  When he started at Capistrano, he 
          received minimal special attention and was included in 
          regular ninth grade classes to the greatest extent possible.  
          He failed every one.  Then the school placed him in a special 
          day class within the normal school setting.  Still, he 
          failed.  As the district court found, when he began attending 
          Mardan, with its increased attention and comprehensive
          behavior management plan he succeeded.  This result is
          consistent with the predictions of the doctors at College
          Hospital, who said Jeremy needed a very structured
          environment in order to benefit from his education.  Congress
          expressed a preference for mainstreaming where "appropriate."
          Congress provided for separate teaching of disabled children
          where education in regular classes with the use of
          supplementary aids and services "cannot be achieved
          satisfactorily."  Mainstreaming which results in total 
          failure, where separate teaching would produce superior 
          results, is not appropriate and satisfactory.  Congress 
          expressly limited its presumption in favor of mainstreaming 
          to cases where mainstreaming is "appropriate" and mainstream 
          education can be provided "satisfactorily."

          [14] The award of the costs of tuition for and transportation
          to Mardan was not in error.

          D.  Attorneys Fees

          The school district argues that the district court erred in
          awarding attorneys fees to the Wartenbergs, because they did
          not accomplish a more favorable result from the "due process
          hearing" than the school district was prepared to give them
          by way of settlement before the hearing.  There is no factual
          support in the record for the school district's position, and
          we affirm.

          The statute provides for an award of attorneys fees to
          parents if they prevail, so long as they did not turn down a
          "more favorable" settlement offer:

          (D) No award of attorneys' fees and related costs may be made 
          in any action or proceeding under this subsection for
          services performed subsequent to the time of a written offer 
          of settlement to a parent or guardian, if -

               (i) the offer is made within the time prescribed by Rule
                   68 of the Federal Rules of Civil Procedure or, in
                   the case of an administrative proceeding, at any
                   time more than ten days before the proceeding
                   begins;

               (ii) the offer is not accepted within ten days; and

               (iii) the court or administrative officer finds that
                     the relief finally obtained by the parents or
                     guardian is not more favorable to the parents or
                     guardian than the offer of settlement.

          20 U.S.C.  1415(e)(4)(D).

          The school district's written settlement offer required that
          the Wartenbergs accept a different school farther from their
          house, give the school district a hold harmless agreement,
          and waive all attorneys fees.

          [15] They won a more favorable decision.  Most importantly,
          they won a ruling that the Mardan placement was appropriate
          and Jeremy would not have to change to another school.  The
          district court found that an award of attorneys' fees would
          be appropriate under these circumstances, and was not in
          error in so doing.

          AFFIRMED.

          
          FERGUSON, Circuit Judge, dissenting:

          I must dissent because the hearing officer, the district
          court and the majority are in error as a matter of law in
          concluding that a student's behavioral problems which are not
          caused by any specific learning disability can require the
          public school system to pay for private schooling.

          The record in this case demonstrates that public schools are
          not required to assume responsibility for the volitional
          behavior of a student simply because that student qualifies
          for special education under the Individuals with
          Disabilities Education Act ("IDEA"). 20 U.S.C.  1400 et seq.

                                     BACKGROUND

          Jeremy Wartenberg was a high school student who suffers from
          a mild, specific learning disability, a language processing
          problem.  It is undisputed that Jeremy is eligible for
          special education and related services under IDEA based on
          his specific learning disability.  20 U.S.C.
          1401(a)(I)(A);  34 C.F.R.  300.7(b)(lO).  Jeremy is also an
          adolescent whose conduct is marked by a distinct lack of
          conscience.  Jeremy's defiant, hostile and antisocial
          behavior has been directed towards teachers and
          administrators at school, as well a towards his family
          at home.

          Jeremy attended public schools in the Capistrano Unified
          School District ("Capistrano District") from kindergarten
          through ninth grade, when his parents unilaterally withdrew
          him from Capistrano Valley High School.(2)  In seventh grade,
          Jeremy was temporarily removed from school by his parents and
          admitted to College Hospital in response to his extreme
          behavioral problems.  Upon Jeremy's discharge from College
          Hospital, he returned to the eighth grade at Newhart Junior
          High School in the Capistrano District.  He completed junior
          high at Newhart, under an Individualized Education Program
          composed of regular classes and one hour of special education
          per day.

          In high school Jeremy's behavioral problems worsened.
          Additional Individualized Education Program assessment
          meetings were held and a new treatment plan was developed.
          Jeremy's Individualized Education Program included weekly
          individual therapy, collateral therapy for his parents,
          consultations with a behavior management specialist to
          establish a behavioral system integrating home and school,
          and weekly meetings between Jeremy's teachers and his
          parents.  The school district conducted additional
          Individualized Education Program assessments throughout 1989
          and 1990.  The school district ultimately concluded that
          Jeremy's scholastic failures did not result from his specific
          learning disability, but rather were solely the result of his
          defiant and anti-social behavioral problems.  Jeremy was
          eventually diagnosed as also having attention-deficit
          disorder and a conduct disorder.

          In school, Jeremy threatened others with "I want to kill you"
          and defied teachers commands with profanities.  Jeremy's
          behavior at home was equally as terrifying.  During his
          mother's pregnancy with a second child, Jeremy kicked her,
          hit her in the stomach, and stated that be wanted to kill the
          baby.  Jeremy has set fires, lied and shoplifted.  His mother
          was forced to leave the family home with her younger son for
          an extended period of time for fear of Jeremy injuring the
          baby.

          Jeremy received passing grades and was an acceptable student
          when he attended class, did his homework, and was not
          truant.  When Jeremy chose to be defiant and antisocial, his
          grades dropped.  There is no evidence that the special
          education programs the school provided for Jeremy were an
          inadequate response to Jeremy's mild, specific learning
          disability.  Jeremy's parents, however, were dissatisfied
          with members of the school district's Individualized
          Education Program assessment team and with Jeremy's
          persistent anti-social behavior.  In response to their
          frustration, Jeremy's parents unilaterally placed Jeremy in a
          private school and sought reimbursement and attorneys' fees
          from the school district.

          The majority has ruled that the public school system must pay
          for Jeremy's private education and his parents' attorneys'
          fees.  I maintain that it does not.

                                   APPLICABLE LAW

          The key to the error in this case is the deliberate
          and explicit rejection by the administrative hearing officer
          and the district court of the requirement of causation.  The
          majority assert that the hearing officer "meticulously
          analyzed" the evidence and determined that Jeremy's failure
          was "caused primarily by his covered disability".  However,
          the hearing officer made no such finding.  The hearing officer
          concluded that:

          Jeremy's disorder in attention is the processing disorder
          that is the primary cause of his specific learning
          disability.

          Finding  that Jeremy's attention-deficit disorder causes his
          qualified learning disability is not, as the hearing officer,
          the district court, and the majority impute, the same as
          finding that Jeremy's learning disability causes his
          behavioral problems.  The cause of Jeremy's qualified learning
          disability is immaterial to the resolution of this case.  The
          question before the hearing officer and the district court
          was whether Jeremy's specific learning disability caused his
          behavior problems and there was no evidence offered that it
          did.

          This court's review of a state hearing officer's decision
          under IDEA involves a two-step analysis.  First, the court
          must determine whether IDEA's procedural requirements
          have been met.  Then, the court must establish whether IDEA's
          substantive component, requiring the state to provide
          an "appropriate" education from which a child can benefit,
          has been  satisfied.  Union School Dist. v. Smith, 15
          F.3d 1519, 1524 (9th Cir.), _cert._denied,_ __U.S.__,
          115 S.Ct. 428 (1994) (citations omitted).  The state hearing
          officer erred in her analysis of the adequacy of Capistrano
          District's Individualized Education Program for Jeremy.

          The hearing officer concluded that Capistrano District's 
          Individualized Education Program for Jeremy was inadequate 
          because Jeremy was not benefiting from his education.  As a 
          result, she found that Jeremy's parents are entitled to 
          reimbursement for his private placement.  However, the states 
          need only provide qualified children with a "basic floor of 
          opportunity" through a program "individually designed to 
          provide educational benefit to the handicapped child." 
          Gregory K. v. Longview SchooL Dist., 811 F.2d 1307, 1314 (9th 
          Cir. 1987) (quoting Henrick Hudson Central School Dist. v.  
          Rowley, 458 U.S. 176, 197 n.21, 200-01 (1982)).  The record
          is clear that Capistrano District designed a program from 
          which Jeremy could have benefited, bad be chosen to do so.

          To qualify under IDEA, a child must satisfy three criteria:
               
               (i) he must suffer from one or more of the categories of
                   empairments delineated in IDEA,

               (ii) his impairment must
                    adversely affect his educational performance, and

               (iii) his qualified impairment must require special 
                    education and related services.

          Dennis E. Cichon, Responsibility Under the Education For All
          Handicapped Children Act of 1975,  48 Ohio St. L.J. 1089,
          1112 (1987).  If a school district fails to provide free 
          appropriate education from which a qualified child can 
          benefit, a parent has an equitable right to reimbursement for 
          a private educational placement.  W.G. v. Board of
          Trustees, 960 F.2d 1479, 1485 (9th Cir. 1992) (citing
          Burlington School Comma. v. Mass. Dep't of Educ., 471 U.S.
          359 (1985)).  However, a nexus must exist between the 
          qualified impairment and the necessity of a private 
          placement.

                                     DISCUSSION

          The  statutory language of 20 U.S.C. 1401(a)(1)(A)(ii)
          establishes a causation requirement for receipt of
          benefits under IDEA:

               (a)(1)(A) The term "children with disabilities" means
                         children - (ii) who, by reason thereof, need
                         special education and related services.
                         (Emphasis added.)

          Absent such a causation requirement, school districts could
          be forced to pay for special education and related
          services, including private placements, for emotionally
          disturbed students whose inability to benefit from education
          does not result from any qualified disability, but rather
          results from problems at home such as physical abuse or the
          emotional trauma that often accompanies divorce.  Here, the
          school district agrees that Jeremy qualifies for special
          education because of his specific learning disability.
          However, the school district contends that Jeremy's
          behavioral problems which inhibit his learning are caused by
          his diagnosed conduct disorder and not by his specific
          learning disability.

          The hearing officer, the district court and the majority err
          in their analysis of Jeremy's need for a private placement in
          two ways.  First, they rely on the hearing officer's wrong
          conclusion that causation is not the legal test for
          determining whether a private placement is required under
          IDEA.  Secondly they confuse Jeremy's specific learning
          disability with his diagnosed attention-deficit disorder and
          ignore his diagnosed conduct disorder.  Neither the state
          hearing officer nor the district court found that Jeremy's
          qualified specific learn learning disability significantly
          affected his behavioral conduct at home or at school.

          It is clear that the analysis of behavioral causation must be
          the starting point for determining the responsibilities of
          public schools under IDEA.  If causation were not required,
          then every impediment to learning, regardless of whether or
          not it was a learning disability, could qualify a student for
          a private placement.  Yet, the hearing officer held:

               Much of the testimony in the hearing addressed whether 
               Jeremy suffers from an attention-deficit disorder and 
               whether this disorder in fact causes his emotional and 
               behavioral problems.  It should be noted, however, that 
               the standard the courts use _does_not_make_causation_
               part of the analysis but instead focuses on the ability
               to segregate a student's medical, social or emotional
               problems from the learning process.  (Emphasis added.)

          While segregability may be a subsequent question which must
          be addressed in residential placement cases, see Clovis
          Unified School Dist. v. Office of Administrative Hearings,
          903 F.2d 635, 643 (9th Cir. 1990), Kruelle v. New Castle
          County School Dist., 642 F.2d 687, 693 (3rd Cir. 1981), it is
          not the test for evaluating volitional behavior.

          This court, in Doe v. Maher, 793 F.2d 1470 (9th Cir. 1986) 
          aff'd sub nom., Honig v. Doe, 484 U.S. 305 (1988)(holding
          that a handicapped child may be expelled if his misbehavior 
          is not a manifestation of his handicap), applied a causation 
          test when considering whether student misconduct, unrelated 
          to a qualified impairment, is protected under IDEA.  Maher, 
          793 F.2d at 1482.  Expulsion cases like Maher directly 
          address whether a handicapped child's misbehavior can result 
          from factors outside of his handicapping condition.  Like 
          expulsion, private placement may be necessary to address a 
          child's behavioral problems, but may not be covered by IDEA.  
          The school district is not responsible for a child whose 
          learning disability is not the cause of his educational 
          failure.

          Jeremy had the ability to control his behavior.  It is true
          that you cannot differentiate Jeremy's conduct from the fact
          that he was not learning.  Jeremy's behavioral problems
          caused his failure to learn.  However, the hearing
          officer explicitly ignored the fact that Jeremy can only
          qualify for a private placement if his qualifying
          learning disability caused his behavioral problems.  It is
          not the government's responsibilities to intercede every time
          a parent abdicates his or her parenting responsibilities.
          IDEA does not require the school district to assume the cost
          for such deliberate behavior.  Jeremy's specific learning
          disability, a language processing problem, does not justify
          private schooling at the expense of the school district.

          The hearing officer, district court and majority also
          confuse Jeremy's diagnosed attention-deficit disorder with
          his specific learning disability.  They assert that Jeremy's
          attention-deficit disorder, as the probable cause of his
          specific learning disability, qualify him for a private
          placement.  The record demonstrates that, in addition to
          his specific learning disability Jeremy also has
          attention-deficit disorder.  The Diagnostic and Statistical
          Manual 111-R ("the Manual'), upon which all parties rely,
          defines attention-deficit disorder as a condition persisting
          for at least six months in which a child fidgets, cannot
          remain  seated, blurts out answers, shifts from one
          uncompleted activity to another, or cannot play quietly.
          Jeremy's parents did not place him in a private school
          because he exhibited such traits.  Moreover, the programs
          specifically designed for Jeremy at the public school were
          comprehensive and adequate to handle such a problem.
          While attention-deficit disorder, like a specific
          learning disability, is an organic disorder, there is no
          basis in reason or law to justify it resulting in a private
          placement.

          Jeremy also has a conduct disorder.  The Manual
          enumerates some of the symptoms indicative of a conduct
          disorder as stealing, running away from home overnight,
          lying, fire-setting, truancy, and physical cruelty.
          These were the behavioral problems which led Jeremy's
          parents to put him in a private school.  The evidence is clear
          that Jeremy's behavioral problems resulted from his conduct
          disorder and not his attention-deficit disorder.  When he
          wanted to control his behavior, he succeeded in school;
          when he chose not to control his behavior, he failed.

          The hearing officer, in her findings of fact and conclusions
          of law, rejects the requirement of causation with respect to
          Jeremy's specific learning disability.  Yet in her discussion
          of attention-deficit disorder, the hearing officer
          specifically relies on it.  She states:

               Much  of the testimony in the hearing addressed
               whether Jeremy suffers from an attention-deficit
               disorder and whether this disorder in fact causes his
               emotional and behavioral problems... The Hearing
               Officer therefore finds that Jeremy does suffer from an
               attention-deficit disorder.

               [W]hile the evidence indicates that Jeremy may have a 
               conduct disorder which results in some of his behavioral 
               problems, _Jeremy's_disorder_in_attention_is_a_ 
               _substantial_cause_ of his negative behaviors.
               (Emphasis added.)

          The hearing officer finds that Jeremy's misbehavior was 
          caused by his specific learning disability, but was 
          substantially caused by his attention-deficit disorder.  She
          concludes that because attention-deficit disorder "can" be 
          part of a specific learning disability, Jeremy qualifies for 
          private placement.  The latter is subject to being clearly 
          erroneous.  There is no evidence that Jeremy's misbehavior at 
          home or his threats to kill people at school were 
          substantially caused his lack of attention.  Jeremy's 
          behavioral problems which resulted in his private placement 
          are manifestations of his conduct disorder and his conduct 
          disorder does not qualify him for benefits under IDEA.

          Even if one accepts the heating officer's conclusions as 
          supported by the evidence as a matter of law, a diagnosis of 
          attention-deficit disorder does not qualify a child for 
          protection under IDEA.

          While Jeremy's attention-deficit disorder may be an "organic 
          disorder" and may be the cause of his behavioral problems, 
          mere diagnosis of attention-deficit disorder does not qualify 
          a child for protection under IDEA.  See 20 U.S.C. 
          1401(a)(1)(A);  34 C.F.R.  300.7; Camden (MO) R-III Sch. 
          Dist., 20 IDELR 197 (1993) (implying that only the
          American's with Disabilities Act and  504 of the 
          Rehabilitation Act are violated by not evaluating a student 
          for attention-deficit disorder).  Both the hearing officer 
          and the district court rely on a letter promulgated by the 
          Department of Education in 1991 to conclude that Jeremy's 
          attention-deficit disorder is sufficient to qualify Jeremy 
          for protection.  The explanatory letter, however, does not 
          purport to establish attention-deficit disorder as a 
          qualifying disability.  In fact, the letter states that 
          Congress explicitly decided not to include attention-deficit 
          disorder as a qualified impairment in the 1990 amendments to 
          IDEA.  The Department of Education letter clarifies that a 
          child diagnosed with attention-deficit disorder or 
          attention-deficit hyperactive disorder may qualify as 
          handicapped under IDEA only if their attention-deficit 
          disorder or attention-deficit hyperactive disorder is so 
          severe that it qualifies as a specific learning disability.  
          (Letter from U.S. Dep't of Educ. to Chief State School
          Officers of 9/1 6/91, at 1-4.) Jeremy was never so assessed.  
          It is undisputed that Jeremy qualified for IDEA only on the 
          basis of his language processing problem.  It is also 
          undisputed that Jeremy's language processing problem did not 
          cause his behavioral problems.

          The hearing officer, the district court and the majority 
          apply the wrong test to determine whether or not Jeremy's 
          education in the Capistrano District was adequate under IDEA.  
          Jeremy is entitled to receive free appropriate public 
          education from which he can derive educational benefit.  
          Gregory K,. 811 F.2d at 1314; Rowley. 458 U.S. at 201.
          Jeremy's scholastic failure, however, was the direct result 
          of volitional  behavior.  School districts bear the 
          responsibility of educating disabled students; they do not 
          bear the responsibility of parenting anti-social students.

          I therefore dissent.


          Footnote 1
          A pharmaceutical used "as an integral part of a total
          treatment program ...  for a stabilizing effect in children
          with a behavioral syndrome characterized by ...  moderate to
          severe distractibility, short attention span, hyperactivity,
          emotional lability, and impulsivity."   Physicians' Desk
          Reference 909 (1993).

          Footnote 2
          For a portion of Jeremy's sixth and seventh grade years, his
          parents withdrew him from the Capistrano District and
          enrolled him in a private school known as the ITOP Center for
          Learning.

