E.M. v. Pajaro Valley Unified Sch. Dist. Office of Admin. Hearings

• Decision Date: 14 July 2011
• Docket Number: No. 09–17084.,09–17084.
• Parties: E.M., a minor, by and through his parents, E.M. and E.M., Plaintiff–Appellant,v.PAJARO VALLEY UNIFIED SCHOOL DISTRICT OFFICE OF ADMINISTRATIVE HEARINGS, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

652 F.3d 999

271 Ed. Law Rep. 765

11 Cal. Daily Op. Serv. 8854

2011 Daily Journal D.A.R. 10,678

E.M., a minor, by and through his parents, E.M. and E.M., Plaintiff–Appellant,

v.PAJARO VALLEY UNIFIED SCHOOL DISTRICT OFFICE OF ADMINISTRATIVE HEARINGS, Defendant–Appellee.

No. 09–17084.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 5, 2010.Filed July 14, 2011.

Mandy G. Leigh, Jay T. Jambeck (of counsel), Sarah J. Fairchild, Leigh Law Group, San Francisco, CA, for plaintiff-appellant E.M.Laurie E. Reynolds, Kimberly A. Smith, Fagen, Friedman & Fulfrost, Oakland, CA, for defendant-appellee Pajaro Valley Unified School District.Appeal from the United States District Court for the Northern District of California, Jeremy D. Fogel, District Judge, Presiding. D.C. No. 5:06–cv–04694–JF.Before: JOHN T. NOONAN, RICHARD A. PAEZ, and CARLOS T. BEA, Circuit Judges.Opinion by Judge NOONAN; Dissent by Judge BEA.

OPINION

NOONAN, Circuit Judge:

E.M. is a bilingual student in Pajaro Valley Unified School District (“PVUSD”), California. He has performed poorly in school, although by most measures, he is of average to above-average intellectual ability. E.M.'s parents brought this action to challenge PVUSD's determination that E.M. did not qualify for special education under the Individuals with Disabilities Education Act (“IDEA”). The Special Education Division of the California Office of Administrative Hearings (“OAH”) upheld PVUSD's assessment. The district court, in turn, upheld the OAH's decision.

This appeal comes to us after careful consideration by an able district judge. We disagree with his assessment only to the extent that we find one claim not addressed and one report not measured for its relevance. We affirm the judgment of the district court in part, reverse in part, and remand for further proceedings.

FACTS

At all relevant times, E.M. was a student in PVUSD. In the third and fourth grades, he struggled in school. His teachers identified attention and homework completion as problem areas. They used interventions designed to help him succeed in a regular educational program. They had limited success. E.M. was designated as “at risk for retention.” However, his teachers did not perceive him as a candidate for special education.

The summer before E.M. entered fifth grade, his parents brought him to a psychologist, Roslyn Wright, to have him evaluated for a learning disability. Dr. Wright assessed E.M. using a test of intellectual ability, the Wechsler Intelligence Scale for Children, Third Edition (“WISC–III”), and a battery of achievement tests, the Woodcock–Johnson Tests of Achievement–III (“WJ–III”). Based on the test results, Dr. Wright diagnosed E.M. with a learning disability.

E.M.'s parents then requested PVUSD to assess their son for eligibility for special education and related services under IDEA. PVUSD's psychologist administered to E.M. the Kaufman Assessment Battery for Children (“K–ABC”), a comprehensive intelligence test, and the WJ–III achievement tests. Based on this assessment, PVUSD determined that E.M. was not eligible for special education.

At the request of E.M.'s parents, PVUSD reassessed E.M. in May of his fifth-grade year and reached essentially the same result as it did in its first assessment. PVUSD performed a third assessment in June, resulting in recommendations for additional interventions in the general education classroom. At the end of fifth grade, PVUSD again designated E.M. as at risk for retention.

In November 2005, in the first half of E.M.'s sixth-grade year, E.M.'s parents obtained an auditory evaluation by Dr. Ruth Kaspar. She concluded that E.M. had an auditory processing disorder.

PROCEEDINGS

E.M.'s parents disagreed with PVUSD's assessments and, on December 5, 2005, E.M. filed a complaint with the Special Education Division of the OAH. The OAH held a six-day due process hearing and issued a decision in favor of PVUSD on all issues. E.M. appealed the decision to the district court, where the parties filed cross-motions for summary judgment.

In the district court, E.M. moved to supplement the record with evidence obtained after the conclusion of the OAH hearing. This evidence included a report by Cheryl Jacques, a clinical psychologist, who reviewed E.M.'s records and conducted a battery of tests. Dr. Jacques tested E.M.'s intelligence using the WISC–IV, an updated version of the WISC–III test that Dr. Wright used. Based on her assessment and review of the records relating to E.M., Dr. Jacques concluded that E.M. had a “specific learning disability” as defined under IDEA. See 20 U.S.C. § 1401(30). She also reviewed the data from prior assessments and concluded that it was “puzzling” that PVUSD did not find that E.M. qualified for special education in 2004. The district court denied E.M.'s request to supplement the record with Dr. Jacques's report.

The district court initially denied PVUSD's motion for summary judgment and remanded E.M.'s case to the OAH for further written analysis as to some of the prior conclusions of the administrative law judge (“ALJ”). In the meantime, PVUSD re-assessed E.M. and, on February 22, 2008, found him eligible for special education as of that date. PVUSD did not admit that it had previously failed to locate, evaluate, and identify E.M. as a student with a disability.

The OAH returned E.M.'s case to the district court, where E.M. argued that he was entitled to compensatory educational services, among other forms of relief, based on PVUSD's failure to meet its obligations to him under IDEA prior to its February 22, 2008 reassessment. The district court found that the ALJ's amended opinion provided a sufficient basis for deciding the parties' cross-motions for summary judgment. It granted PVUSD's motion.

This appeal followed.

ANALYSIS

We have jurisdiction to review the district court's grant of summary judgment under 28 U.S.C. § 1291. We review de novo an award of summary judgment. Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1494 (9th Cir.1994). Evidentiary rulings are reviewed for abuse of discretion. United States v. Higuera–Llamos, 574 F.3d 1206, 1209 (9th Cir.2009).

E.M. claims that the district court erred in concluding that PVUSD met its affirmative obligation to locate, evaluate, and identify him as a student with a disability (its “child find” obligation). See 20 U.S.C. § 1412(a)(3)(A); 34 C.F.R. § 300.111(a)(1)(ii); Cal. Educ.Code §§ 56300, 56301. In particular, E.M. argues that PVUSD did not properly evaluate him and identify him as a student eligible for special education and related services based on his specific learning disability and on his “other health impairments” of Attention Deficit Disorder/Attention Deficit Hyperactivity Disorder (“ADD/ADHD”) and auditory processing disorder. See 20 U.S.C. § 1401(3)(A)(i); 20 U.S.C. § 1401(30). E.M. claims entitlement to additional educational services to compensate him for PVUSD's failure to meet its obligations to him under IDEA. See Puyallup, 31 F.3d at 1496.

I.

We first address E.M.'s eligibility for special education as a child with a specific learning disability. Under California law in effect during the relevant period, a child is found to have a specific learning disability when it is determined that (1) a “severe discrepancy” exists between the child's intellectual ability and achievement in one or more of seven designated academic areas; (2) “[t]he discrepancy is due to a disorder in one or more of the basic psychological processes and is not the result of environmental, cultural, or economic disadvantages”; and (3) “[t]he discrepancy cannot be corrected through other regular or categorical services offered within the regular instructional program.” Cal. Educ.Code § 56337 (2005). The parties dispute whether E.M. met the first and second criteria.

E.M. argues that the district court improperly concluded that he failed to establish that he suffered from a “disorder in a basic psychological process.” We agree. The only person who formally assessed E.M. for an auditory processing disorder was Dr. Ruth Kaspar. Dr. Kaspar, an audiologist, diagnosed E.M. with an auditory processing disorder. The school district hired Dr. Jody Winzelberg, also an audiologist, as an expert witness. Based on a review of Dr. Kaspar's report, Dr. Winzelberg testified that she would characterize E.M.'s test results as showing “some weakness in the auditory system,” and that she could not rule out an auditory processing disorder diagnosis.

E.M. also argues that the district court erred in concluding that he failed to show that there was a “severe discrepancy” between his intellectual ability and achievement scores. In determining whether a severe discrepancy existed, PVUSD used E.M.'s performance score of 104 on the WISC–III test administered by Dr. Wright rather than E.M.'s mental processing composite score of 111 on the K–ABC test that PVUSD itself administered. PVUSD does not dispute that had it used the K–ABC score, it would have found a severe discrepancy. Instead, PVUSD argues that it made a reasonable determination that E.M. did not show a severe discrepancy based on all available material on E.M. E.M. contends that PVUSD impermissibly considered the fact that he is bilingual and “cherry picked” among his test scores to reach a predetermined result.

This court has held that school districts have discretion in selecting the diagnostic tests they use to determine special education eligibility. See Ford v. Long Beach Unified Sch. Dist., 291 F.3d 1086, 1088–89 (9th Cir.2002) (holding that a school district need not use any traditional IQ test to assess for specific learning disability). E.M.'s case presents a related, but different, question: does IDEA permit a school district to exclude the valid results of a test the district itself selected and administered? This question touches on a fundamental tension in special education law—that between ensuring...