Doe v. Cape Elizabeth Sch. Dist.

• Decision Date: 05 August 2016
• Docket Number: No. 15-1155,15-1155
• Citation: 832 F.3d 69
• Parties: Mr. and Mrs. Doe, Plaintiffs, Appellants, v. Cape Elizabeth School District, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

832 F.3d 69

Mr. and Mrs. Doe, Plaintiffs, Appellants,

v.Cape Elizabeth School District, Defendant, Appellee.

No. 15-1155

United States Court of Appeals, First Circuit.

August 5, 2016

Richard O'Meara , with whom Kaitlyn M. Wright and Murray, Plumb & Murray , Portland, ME, were on brief, for appellant.

Eric R. Herlan , Portland, ME, with whom Erin R. Feltes , Manchester, NH, and Drummond Woodsum & MacMahon were on brief, for appellee.

Amy Phalon and Gibbons Stevens Law Office on brief for amici curiae International Dyslexia Association et al.

Ellen Saideman , Fort Lauderdale, FL, Law Office of Ellen Saideman , Selene Almazan-Altobelli , and Council of Parent Attorneys and Advocates on brief for amicus curiae Council of Parent Attorneys and Advocates.

Before Barron, Selya, and Lipez, Circuit Judges.

LIPEZ

, Circuit Judge.

This case raises an important issue regarding eligibility for special education under the Individuals with Disabilities Education Act (“IDEA”). We are asked, in essence, to decide whether a child with a strong academic record may still be found to have a learning disability and a need for special education, thereby entitling her to special education and related services.

Appellants Mr. and Mrs. Doe (“the Does”) appeal the decision of the district court, which affirmed the administrative hearing officer's determination that their child, Jane Doe (“Jane”), is no longer eligible to receive special education under the IDEA despite allegedly suffering from a reading fluency deficit. The Does argue that the district court erred as a matter of law in its eligibility inquiry because (i) the court considered Jane's overall academic achievement, when her deficiency in reading fluency is sufficient by itself to support eligibility, and (ii) the district court did not make an independent judgment as to Jane's reading fluency deficit, instead deferring to the hearing officer's factual findings, while summarily dismissing the additional evidence that the Does submitted.

Having carefully considered the claims, we conclude that, while Jane's overall academic performance could potentially be relevant in determining whether she has a reading fluency deficit, the district court erred in relying on such evidence without regard to how it reflects her reading fluency skills. Additionally, we find that the court failed to make an independent judgment as to the additional evidence submitted by the Does and afforded excessive deference to the hearing officer's determinations in weighing the relevant reading fluency measures. Hence, we vacate and remand the case.

We clarify, however, that even if the district court finds on remand that Jane has a reading fluency deficit, she would not be eligible for special education unless she also “needs” special education. In assessing that need, grades and standardized test results are not categorically barred from consideration any more than they are categorically barred under the first prong inquiry, so long as they were determined to be relevant in discerning a learning disability.

I.

The factual and procedural history of this case is informed by the statutory framework governing the eligibility inquiry and judicial review of administrative decisions. We thus preface our discussion of the facts with a brief overview of the relevant statutory regime.

A. Legal Background

The IDEA was enacted to provide “free appropriate public education” to children with disabilities. 20 U.S.C. § 1400(d)(1)(A)

. Pursuant to this objective, the statute mandates that states receiving federal funds under the statute provide “special education and related services” to students who qualify as children with disabilities. Id.§§ 1401(3)(A)(ii), 1412(a)(1)(A). All determinations regarding eligibility for special education are hence governed, in the first instance, by the definition of a “child with a disability.” See id.§ 1401(3)(A). A “child with a disability” is a child:

(i) with intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to in this chapter as “emotional disturbance”), orthopedic impairments, autism

, traumatic brain injury, other health impairments, or specific learning disabilities; and

(ii) who, by reason thereof, needs special education and related services.

Id.

Accordingly, eligibility determinations proceed in two steps. The first prong determines the existence of a disorder¹ —here, a specific learning disability (“SLD”). Id.§ 1401(3)(A)(i). The second prong identifies whether the child with a qualifying disorder “needs” special education and related services as a result of that disorder. Id. § 1401(3)(A)(ii).

Regulations promulgated by the U.S. Department of Education (“U.S. DOE”) provide further guidance on how to identify a child with an SLD. An SLD is “a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury

, minimal brain dysfunction, dyslexia, and developmental aphasia.” 34 C.F.R. § 300.8(c)(10)(i). A child has an SLD if:

(1) The child does not achieve adequately for the child's age or [ ] meet State-approved grade-level standards in one or more of the following areas, when provided with learning experiences and instruction appropriate for the child's age or State-approved grade-level standards:

(i) Oral expression.

(ii) Listening comprehension.

(iii) Written expression.

(iv) Basic reading skill.

(v) Reading fluency skills.²

(vi) Reading comprehension.

(vii) Mathematics calculation.

(viii) Mathematics problem solving.

[and]

(2)(i) The child does not make sufficient progress to meet age or State-approved grade-level standards in one or more of the areas identified in paragraph (a)(1) of this section when using a process based on the child's response to scientific, research-based intervention; or

(ii) The child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development, that is determined ... to be relevant to the identification of a specific learning disability, using appropriate assessments, consistent with §§ 300.304 and 300.305.

Id.§§ 300.309(a)(1), (a)(2)(i)-(ii).³

Once a child is determined to have an SLD, the eligibility inquiry asks whether the child also “needs special education and related services” “by reason [of]” her disability. 20 U.S.C. § 1401(3)(A)(ii)

. “Special education” is defined as “specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including ... instruction conducted in the classroom, in the home ... and in other settings,” as well as “instruction in physical education.” Id.§ 1401(29). “Related services” means “transportation, and such developmental, corrective, and other supportive services (including ... psychological services, physical and occupational therapy, ... medical services ...) as may be required to assist a child with a disability to benefit from special education.” Id.§ 1401(26)(A). Neither the statute nor the agency regulations specifies the object or the scope of the need determination.

B. Factual Background⁴

As early as preschool, Jane struggled with reading and learning to talk. When she was in second grade in the Cape Elizabeth School District (“school district”), Jane's Individualized Education Program team (“IEP team”)—which included her parents and teachers (among other individuals), see id.§ 1414(d)(1)(B)—concluded that Jane was eligible to receive special education under the IDEA as a student with an SLD based on her deficiency in reading fluency. Jane's IEP team thus developed an Individualized Education Program (“IEP”) to provide Jane with specialized instruction to improve her reading fluency skills. As a bright, hard-working student with dedicated parents, Jane improved her reading skills over the years, and she continued to perform well in school, as well as on standardized tests.

In March 2012, when Jane was in seventh grade, her IEP team decided to place her on consult status for the remainder of the year, based on the fact that she was achieving well in school, including in the area of reading fluency. Although the Does did not object, they expressed a concern that Jane might regress without specialized instruction. To address this concern, the IEP team agreed to administer monthly reading fluency probes⁵ to monitor Jane's fluency skills. Since March 2012, Jane has not received any special education.

In January 2013, Jane's IEP team decided that she no longer qualified as a student with an SLD because, among other reasons, she was achieving adequately in all areas, including reading fluency, even without special education, and hence did not have a cognizable learning disability under federal and state laws. Among the factors considered by the IEP team was Jane's excellent academic record, as demonstrated by her straight-A grades and her performance on generalized state standardized tests, such as NECAP (New England Common Assessment Program) and NWEA (Northwest Evaluation Association) exams. The IEP team also took into account the results of tests that were administered specifically to measure Jane's reading skills, such as TOWRE-2 (Test of Word Reading Efficiency), WMRT-III (Woodcock Reading Mastery Tests), GORT-5 (Gray Oral Reading Test), and TOC (Test of Orthographic Competence). Jane scored above average or in the average range in almost all the areas in which she was tested, including reading fluency. The team also considered Jane's social and behavioral life in school, as observed by her teachers, school psychologist, parents, and herself.

The Does disagreed with the school's eligibility decision...