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

• Decision Date: 15 July 2014
• Docket Number: No. 12–15743.,12–15743.
• Citation: 758 F.3d 1162
• 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

758 F.3d 1162

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. 12–15743.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 7, 2014.

Filed July 15, 2014.

Mandy G. Leigh (argued), Jay T. Jambeck, and Sarah J. Fairchild, Leigh Law Group, San Francisco, CA, for Plaintiff–Appellant.

Laurie E. Reynolds and Kimberly A. Smith (argued), Fagen Friedman & Fulfrost, Oakland, CA, for Defendant–Appellee.

Philip H. Rosenfelt, United States Department of Education, and Thomas E. Perez, Mark L. Gross, and Jennifer L. Eichhorn (argued), United States Department of Justice, Washington, D.C., Amicus Curiae United States of America.

Before: MARY M. SCHROEDER, KERMIT V. LIPEZ ^*, and CONSUELO M. CALLAHAN, Circuit Judges.

OPINION

CALLAHAN, Circuit Judge:

In 2004, before E.M. entered the fourth grade, he was first tested for a learning disability. Through this lengthy litigation it has been established that E.M. has an auditory processing disorder or a central auditory processing disorder. However, in the fall of 2004 and the spring of 2005, E.M.'s school district, the Pajaro Valley Unified School District (“PVUSD”) tested E.M. and determined that, despite his learning disability, E.M. was not eligible for special education services. Subsequently, as a result of further testing procured by E.M.'s parents, PVUSD determined in February 2008 that E.M. did qualify for special education. Shortly thereafter, E.M. moved to another school district which also recognized that he qualified for special education.

Meanwhile, E.M. filed an administrative complaint with the Special Education Division of the California Office of Administrative Hearings. When the Administrative Law Judge (“ALJ”) issued a decision in favor of PVUSD, E.M., through his parents (the “Plaintiffs”), filed a complaint in the United States District Court for the Northern District of California alleging that E.M. had been denied a “Free and Appropriate Public Education” as set forth in the Individuals with Disabilities Education Improvement Act of 2004 (“IDEA”). 20 U.S.C. §§ 1400, et seq. The district court granted summary judgment in favor of PVUSD, Plaintiffs appealed, and we issued an opinion affirming in part, reversingin part and remanding. E.M. v. Pajaro Valley Unified Sch. Dist., 652 F.3d 999 (9th Cir.2011). On remand the district court again denied Plaintiffs any relief and further ruled that E.M.'s central auditory processing disorder could not be considered an “other health impairment” under the applicable federal and state regulations. See34 C.F.R. § 300.7(c)(9) (2005); Cal.Code Regs. Tit. 5, § 3030(f) (2005). ¹

On this appeal we address three primary issues. First, we conclude that Plaintiffs have failed to show that PVUSD acted unreasonably in determining in 2005 that E.M. did not qualify for special education services under the “specific learning disability” category. See20 U.S.C. § 1403(1)(A). Second, we conclude that the Department of Education's position that a central auditory processing disorder is eligible for consideration for benefits under the “other health impairment” category merits deference. Finally, we determine that Plaintiffs have failed to show that PVUSD acted unreasonably in not considering E.M. for benefits under the “other health impairment” category in 2005. Accordingly, we affirm the denial of relief to Plaintiffs.

I

A. PVUSD's Initial Assessment of E.M.

E.M. enrolled in PVUSD as a kindergarten student in 1999. Plaintiffs assert that E.M. struggled at school and that PVUSD should have referred him for a special education assessment as early as December 2002, pursuant to its “child find” obligation. This provision of the IDEA requires school districts to identify children with disabilities and to ensure that each child is evaluated and provided appropriate special education services.²

In the summer of 2004, before E.M. entered the fifth grade, Plaintiffs had E.M. tested by psychologist Dr. Roz Wright, who administered the Weschsler Intelligence Scale for Children (3d ed.) and the Woodcock Johnson Tests of Achievement–III (“WISC”). Dr. Wright estimated E.M.'s intelligence quotient (“IQ”) to be 104, based on the test. Plaintiffs then requested that PVUSD evaluate E.M. and submitted Dr. Wright's assessment.

In October 2004, PVUSD convened a meeting of E.M.'s Individualized Education Program (“IEP”) team. In addition to Dr. Wright's assessment, the IEP team considered the results of additional tests administered by Leslie Viall, PVUSD's psychologist.

Ms. Viall, who had more than fifteen years of experience administering educational assessments of children, testified that she thought the WISC score of 104 was a valid measure of E.M.'s intellectual ability. She stated that in October 2004, she had given E.M. the Kaufman Assessment Battery for Children test (“K–ABC” test) and that E.M. had obtained a higher score of 111. Ms. Viall explained that she administered the K–ABC test because the parents' assessor, Dr. Wright, had recently administered the WISC test and that re-administering the same test less than four months later would have produced an invalid score. When the K–ABC test produceda significantly higher score, Ms. Viall administered a third intelligence test, the Test of Nonverbal Intelligence (“TONI”), on which E.M. scored a 98. Because E.M.'s TONI score was consistent with his performance on the WISC, rather than the higher score on the K–ABC, Ms. Viall determined that 104 was the most reliable measure of E.M.'s intellectual ability.

In 2005, to qualify for special education under the “specific learning disability” (sometimes referred to as “SLD”) category in California, a child had to meet three requirements: (1) “there must be a severe discrepancy between intellectual ability and achievement in oral expression, listening comprehension, written expression, basic reading skills, reading comprehension, mathematics calculation, or mathematical reasoning”; (2) “the severe discrepancy must be due to a disorder in one or more of the basic psychological processes and must not be primarily the result of an environmental, cultural, or economic disadvantage”; and (3) “the discrepancy cannot be ameliorated through other regular or categorical services offered within the regular education program.” Cal. Educ.Code § 56337 (2005).

PVUSD determined that E.M. had not demonstrated the requisite “severe discrepancy between intellectual ability and achievement.” The applicable California regulations defined a severe discrepancy as a difference of at least 22.5 points, adjusted by 4 points, between a child's ability and performance. Faced with three scores, 111 on the K–ABC, 104 on the WISC, and 98 on the TONI, PVUSD opted to use the middle score, 104 on the WISC. E.M.'s lowest standard score in any academic area was 87 on listening comprehension. The discrepancy between 87 and 104 was only 17 points, not sufficient to constitute a severe discrepancy.

B. Plaintiffs' Initial Proceedings Before the Administrative Law Judge and the District Court

When PVUSD denied E.M. special education benefits, Plaintiffs filed an administrative complaint with the Special Education Division of the California Office of Administrative Hearings. A hearing was held, and on May 2006, the ALJ issued a final decision denying Plaintiffs any relief.

Plaintiffs then commenced this action in the United States District Court for the Northern District of California. In October 2007, the district court denied cross-motions for summary judgment and remanded the case to the ALJ. The ALJ was asked to “set forth more completely his reasoning as to why the WISC test was favored over the K–ABC, as well as his approach to evaluating all of the quantitative test data in light of the mixed results of that data.”

Meanwhile, Plaintiffs had E.M. tested by Dr. Cheryl Jacques, who estimated his IQ to be 110. PVUSD then retested E.M. for eligibility for special education and found E.M.'s IQ to be 114. This led PVUSD to determine in February 2008 that E.M. was eligible for special education benefits. Shortly thereafter, E.M. moved to the Fullerton Joint Union High School District, which also determined that he was eligible for special education services.

On remand, the ALJ again determined that Plaintiffs were not entitled to any relief. Plaintiffs appealed to the district court.

On August 27, 2009, the district court granted PVUSD's motion for summary judgment. In doing so, the court first agreed with the ALJ that Ms. Viall was credible and her reasoning persuasive.³ The court noted the irony that PVUSD relied on the diagnostic score provided by Plaintiffs, while Plaintiffs claimed that PVUSD should have used its own KABC scores. The district court further agreed with the ALJ that PVUSD had administered multiple tests to E.M. and had used the totality of the results to arrive at its ultimate determination of ineligibility.

The district court further noted that “viewed as a whole, the observational and anecdotal evidence describes a student who was distracted easily but who also responded to various forms of classroom intervention.” It opined that had E.M. “been able to complete assignments and homework on a more consistent basis, it seems likely that he would have been a consistently average to above-average performer.”

Finally, addressing Plaintiffs' allegation that PVUSD failed to perform assessments with respect to E.M.'s auditory processing, hearing and behavior, the district court commented that at least one auditory processing test was administered by Ms. Viall, and that PVUSD's resource specialist “conducted the Brigance test in both Spanish and English as part of the initial assessment, and this test arguably addresses auditory processing through a subtest involving sentence repetition.” ⁴

C. Plaintiffs' Initial Appeal to the...