E.M., a minor, by and through his parents, E.M. and E.M., Plaintiff-Appellant,
PAJARO VALLEY UNIFIED SCHOOL DISTRICT OFFICE OF ADMINISTRATIVE HEARINGS, Defendant-Appellee
Argued and Submitted, San Francisco, California April 7, 2014.
Appeal from the United States District Court for the Northern District of California. D.C. No. 3:06-cv-04694-MMC. Maxine M. Chesney, Senior District Judge, Presiding.
The panel affirmed the district court's judgment on remand in an action brought by a student, by and through his parents, under the Individuals with Disabilities Education Improvement Act of 2004.
The student's school district determined in 2005 tat, despite his learning disability of auditory processing disorder or central auditory processing disorder, the student was not eligible for special education services. In 2008, as a result of further testing procured by his parents, the school district determined that the student did qualify for special education. Shortly thereafter, he moved to another school district, which also recognized that he qualified for special education.
The panel held that the student failed to show that the school district acted unreasonably in determining in 2005 that he did not qualify for special education services under the " specific learning disability" category because he lacked the required severe discrepancy between his intellectual ability and his achievement.
The Department of Education, as amicus curiae, took the position that a central auditory processing disorder is eligible for consideration for benefits under the " other health impairment" category. The panel held that this position merited deference. The panel nonetheless determined that the student failed to show that the school district acted unreasonably in not considering him for benefits under the " other health impairment" category in 2005.
Mandy G. Leigh (argued), Jay T. Jambeck, and Sarah J. Fairchild, Leigh Law Group, San Francisco, California, for Plaintiff-Appellant.
Laurie E. Reynolds and Kimberly A. Smith (argued), Fagen Friedman & Fulfrost, Oakland, California, 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 by Judge Callahan.
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, reversing
in 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. See 34 C.F.R. § 300.7(c)(9) (2005); Cal. Code Regs. Tit. 5, § 3030(f) (2005).
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. See 20 U.S.C. § 1401(3)(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.
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.
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 produced
a 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 ...