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Michael P. v State of Hawaii Department of Education

Case No. 09-16078 (C.A. 9, Sep. 8, 2011)

Courtney G., a minor with dyslexia, by and through her mother and Guardian Ad Litem, Elizabeth G., appeals from the district court’s order affirming the Administrative Hearings Officer’s (“Hearing Officer”) conclusion that the Hawaii Department of Education (“Hawaii DOE”) properly found Courtney ineligible for services under the Individuals with Disabilities Education Act (“IDEA”). Hawaii DOE determined that Courtney did not qualify for special education under the “specific learning disability” classification because she could not demonstrate a “severe discrepancy” between her actual achievement and her intellectual capacity. Both the Hearing Officer and the district court rejected Courtney’s argument that Hawaii DOE violated IDEA by relying exclusively on the “severe discrepancy model” to determine whether she had a “specific learning disability.” We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand.

BACKGROUND



A. Statutory Background



“Congress enacted IDEA in 1970 to ensure that all children with disabilities are provided a free appropriate public education which emphasizes special education and related services designed to meet their unique needs and to assure that the rights of such children and their parents or guardians are protected.” Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484, 2491 (2009) (internal marks omitted) (citing Sch. Comm. of Burlington v. Dep’t of Educ. of Mass., 471 U.S. 359, 367 (1985)). To qualify for services under IDEA, a child must show (1) the existence of one or more disability classifications, and (2) a need for special education. 20 U.S.C. § 1401(3)(A).

To establish eligibility under the “specific learning disability” classification, a student must show that she (1) has “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 . . . read, write, spell, or to do mathematical calculations, including conditions such as . . . dyslexia,” 34 C.F.R. § 300.8(c)(10)(i); and (2) she needs special education. 20 U.S.C. § § 1401(3)(A), 1401(30)(A). For many years, federal regulations required students to demonstrate their need for special education under the “specific learning disability” classification by showing a “severe discrepancy” between actual achievement and intellectual ability. See Dixie Snow Huefner, The Final Regulations for the Individuals with Disabilities Education Improvement Act (IDEA ‘04), 217 Ed. Law Rep. 1, 8-9 (2007); see also Mark C. Weber, The IDEA Eligibility Mess, 57 Buff. L. Rev. 83, 123-24 (2009).

The federal regulations did not define “severe discrepancy,” but rather, left the matter to the discretion of each state. Perry A. Zirkel, The Legal Meaning of Specific Learning Disability for Special Education Eligibility, 28 (2006). Hawaii defined a “severe discrepancy” as a 1.5 standard deviation between actual achievement and intellectual ability scores. Haw. Code R. § 8-56-26(b) (repealed Nov. 23, 2009). Alternatively, if standardized tests were invalid or did not reveal a statistically significant deviation, Hawaii permitted consideration of additional evidence to determine whether a “severe discrepancy” existed, such as work samples and information provided by the parent. Haw. Code R. § 8-56-26(b) (repealed Nov. 23, 2009).
 

 

Judge(s): Harry Pregerson
Jurisdiction: U.S. Court of Appeals, Ninth Circuit
Related Categories: Constitutional Law , Education
 
Circuit Court Judge(s)
Richard Clifton
Betty Fletcher
Harry Pregerson

 
Trial Court Judge(s)
Helen Gillmor

 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Carl Varady

 
Defendant Lawyer(s) Defendant Law Firm(s)
Rebecca Copeland Office of the Hawaii Department of Education

 

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"[m]ust not require the use of the severe discrepancy between level at the start of the fifth grade. courtney's reading did not is the traditional forum in which facts are assessed and evi- tions of school psychologists and courtney's teachers, indi- disability. moreover, all the experts testified that courtney the majority incorrectly suggests that courtney's strong courtney's mother appeals the district court's decision, pri- mining whether a student has a specific learning disability. ty" classification, a student must show that she (1) has "a dis- 14, 2006, which became effective on october 13, 2006. see ing, the evaluation team considered dr. murphy-hazzard's idea. first, the district court determined that the hearing 56-26(b), were thorough and well-reasoned. the district court when they are "thorough and careful." seattle sch. dist., no. http://schools.nyc.gov/aboutus/default.htm; hawaii department of edu- a child has a specific learning disability." 34 c.f.r. tual records and, where necessary, conduct evidentiary to marshal the pertinent facts and apply the fact-dependent (2003). mary responsibility for public education on the state itself. it special education because she observed some progress in the courtney was eligible for special education under the "spe- the "response to intervention model." id. lington v. dep't of educ. of mass., 471 u.s. 359, 367 (1985)). nov. 23, 2009). learning disability" classification if she satisfies two sets of 17045michael p. v. department of education the second justification offered in the same footnote of the model as unreliable, invalid, easily undermined, and harmful [4] while hawaii doe is correct that it functions as both hearings, held on august 29-31 and december 27, 2007. after a november 9, 2006 evaluation of courtney's speech, prohibits states from requiring exclusive reliance on the "se- achievement discrepancy model [including the `response to ing conditions such as . . . dyslexia," 34 c.f.r. we agree. 2. june 7, 2006, eligibility meeting violation deprived courtney of a significant educational when provided with learning experiences and research-based intervention . . . "). moreover, legislative his- hawaii doe also presented testimony by ms. galindo, professor of disability studies at the university of hawaii. it is possible, of course, to debate the merit of having a single school emptiness of its reasoning. of her fifth grade year. according to dr. murphy-hazzard's instruction is provided." nicholas l. townsend, framing a 17051michael p. v. department of education decide for itself. as the majority opinion describes, at ance on the "severe discrepancy model" violate model." see haw. code r. 8-56-26 (repealed nov. 23, tion. this argument fails because the record shows that the evaluation courtney be evaluated for a possible learning disability by a these tests showed that courtney read at the fourth grade the "severe discrepancy" requirement when it reauthorized 1990) (citing anderson v. city of bessemer city, n.c., 470 8-9 (2007); see also mark c. weber, the idea eligibility convened to determine whether courtney was eligible of supervising the actual local school authorities. 3 opportunity when she is erroneously denied eligibility for spe- logical examiner." both tests were conducted at the end of for special education. dr. royston explained that a child with agreed that courtney had dyslexia. nevertheless, she agreed (2) (a) the student does not make sufficient prog- facts," http://www.teachinla.com/research/faq_notebook/2009-2010/ have the same freedom to decide for itself that all other school 1. hawaii doe assessments tive intent. see h.r. rep. 108-77, at 107 (noting that exclu- ress or a pattern of strengths and weaknesses relevant to identifying a dent eligible for special education under the "specific learning opportunity because it resulted in an erroneous eligibility 34 the annual tuition for assets is $15,600, plus $1,600-$1,700 for bus- demonstrates (1) inadequate achievement or a severe discrepancy between licensed clinical psychologist, to perform a neuropsychologi- the hawaii regulations in place at the time of courtney's eli- we may award reimbursement for private school ment. the legislative history behind the 2004 amendments to this premise is subject to dispute because intelligence testing responsibility to set clear guidelines, 36 j.c. & u.l. 191, the evidence, whether courtney would be eligible for special moreover, courtney performed better on informal reading appellants. private tutoring). 34 c.f.r. 300.307). the amended regulations provide that the conclusions of courtney's expert witnesses that her diffi- regulations would have authorized states to completely forbid and ability because courtney's academic achievement scores were not sig- should not apply. according to hawaii doe, application of reached proficiency in reading. severe discrepancy model or an alternative model by providing direct edu- 1 cational services itself, for whatever reason that state chose to do so. placement if a school district unreasonably finds a child with g., an incompetent minor; idea in 2004. see 20 u.s.c. 1414(b)(6)(a) ("[w]hen mcguigan, documenting learning disabilities: law schools' fifth and sixth grade year attest to her ability to make progress overall academic performance was consistent with the "aver- school district was forbidden to use that measure. congress learning disability and that her learning disability depressed inquiry. accordingly, this court hereby remands this case department of education ("hawaii doe") properly found in the unique situation -- applicable only to hawaii -- when from the second grade in 2003 until the beginning of the 1 v. b.s., 82 f.3d 1493, 1499 (9th cir. 1996). we also accord eligibility question. conclusion test results did not demonstrate a "severe discrepancy" doe") under idea and has not shown the proper deference grade. despite evidence that courtney had dyslexia and was ing conflicted with 300.307(a) by conditioning eligibility idea tion eligibility meetings, and unlike several of courtney's the "response to intervention model" to determine whether ings, and i agree. ogist, speech-language pathologist, or remedial reading teacher. 34 c.f.r. 17023 cific learning disability, a local educational agency may use 12 1996). we review the hearing officer's decision de novo, but "quite severe reading disability" and that she read three grade our dissenting colleague agrees that "34 c.f.r. 300.307(a)(1) pro- special education "the district court is better situated than the court of appeals 17030 michael p. v. department of education majority is right that 34 c.f.r. 300.307(a)(1) prohibits cial education services. cf. t.a., 129 s. ct. at 2495 ("it would accuracy and 50 percent comprehension at the beginning of districts have not been enacted. the statewide district is consistent with natively, if standardized tests were invalid or did not reveal a rect that it may shirk its responsibilities as a state educational learning disability, using appropriate assessments below average, or that she required special education to per- dence suggested that she was progressing and had nearly grade level, which fell in the average range. dr. murphy- choose the best method for identifying students with a "spe- ation, the court is free to accept or reject the findings in part disability" classification if: at a minimum, federal regulations require evaluation teams to include as "the sole basis of determining eligibility" (emphasis tional services directly to students. id. because of these eral regulations. third, the district court held that courtney's words, sound out unfamiliar words, and comprehend con- sification by showing a "severe discrepancy" between actual 17037michael p. v. department of education sisted of a classroom reading assessment report, conducted by 17044 michael p. v. department of education use a process that determines if the child responds to scien- assessments, dr. ferguson concluded that courtney had a use the severe discrepancy measure. rather, it simply exer- the child's parents, the child's regular teacher, and at least one person fifth graders statewide. dardized tests. courtney's mother and grandfather disputed 196. as a result, reliance on the "severe discrepancy model" according to the majority, the hawaii doe, simply seriously suggest that any state would abolish local school school district the discretionary authority to choose whether to use the than the state. see h.r. rep. 108-77, sec. 204, at 107 (2003). until november 23, 2009--more than three years after the continued to improve and was showing increased reading 2 the child demonstrates (1) inadequate achievement relative to ney. dr. royston criticized dr. murphy-hazzard's neuropsy- districts to use the "severe discrepancy model" and compel that reimbursement for reasonable transportation to private courtney's abilities, hawaii doe refused to use the "re- conforming regulations, an evaluation team may find a stu- widespread reliance on the iq-achievement discrepancy in so holding, we certainly mean no disrespect to our dissenting col- 17046 michael p. v. department of education 71 fed. reg. 46540, 46786 (aug. 14, 2006) (to be codified at not demonstrate a discrepancy between her academic achieve- nition and spelling. based on these observations, dr. murphy- the premise underlying the "response to intervention the majority opinion's effort to justify its conclusion in courtney g., an incompetent cator of whether a child has a learning disability. see weber, no. 09-16078 a learning disability, whereas underperforming students with itself whether to use the "severe discrepancy model" in deter- between achievement and intellectual ability in oral expres- consistent with federal regulations. see 20 u.s.c. 1407(a), not thereby "conform its regulations to federal law," as asserted by the able to require the use of a severe discrepancy standard. con- end of the "approaches proficiency" range. her score was seattle sch. dist., no. 1 v. b.s., 82 f.3d 1493, 1499 (9th cir. according to courtney's teacher liza galindo, courtney (i) oral expression; "local educational agency" as a "public authority legally con- congress surely did not intend to deny the local school sive reliance on the "severe discrepancy model" may result in (vii) mathematics calculation; sound educational policy for those of the school authorities weaknesses in performance, achievement, or both, tional agency and does not have separate local school dis- ing. courtney also attended a summer school at assets, which cost gress very clearly did not prohibit a local agency from decid- a state agency entrusted with idea compliance and as a requires a school district to consider the results of a parent-initiated evalu- academic achievement was incommensurate with her intellec- 3. dr. murphy-hazzard's neuropsychological neuropsychologist, courtney's mother, at her own expense, for special education. after considering hawaii doe's education improvement act (idea `04), 217 ed. law rep. 1, hearing officer and the district court rejected courtney's the principal, psychological examiner, school psychologist, student ser- amended regulations. nevertheless, under either version, the dardized and informal reading tests. from the second through and ability; and either (1) insufficient progress, or (2) a pattern of majority opinion wants to reach a different result so it does c. procedural background hawaii's approach to governance generally. the division of responsibility officer found that courtney suffered from dyslexia, he deter- at issue on appeal. age to below average" range, and that her weakest skills concluded that the evidence in the record supported his find- report also noted that courtney needed to improve her oral it is also acting in the capacity of a local educational agency. qualified to conduct diagnostic tests of children, such as a school psychol- years after the federal regulations were effective. see haw. for special education under the "specific learning disability" skills were all measured within the average range for her age" according to dr. royston, general tutoring provided by a private tutor- immediate remediation and intensive tutoring.5 17028 michael p. v. department of education intellectual ability and achievement for determining whether special education.8 underperforming students with relatively high iqs must have dards in one or more of the areas identified in cir. 1999) (finding in favor of student, but remanding to the must allow use of the "response to intervention" model.10 a disability must need special education to qualify for ser- itself how to determine eligibility criteria under idea. every courtney's final eligibility meeting occurred after the first mine whether courtney was eligible for special education. (2009) (internal marks omitted) (citing sch. comm. of bur- gress did not make an exception for hawaii is not a surprise vere discrepancy model" and also requires states to allow use who administered the reading assessment tests, noted that approximately $1,600. determine that a student has a "specific learning disability" if the student assessments and an iq test that indicated courtney had a low- year, courtney's mother and grandfather requested a due pro- direct educational services itself." majority opinion, at 17041 majority opinion fails to explain why hawaii should be state of hawaii, 96. reimbursement is also available for private tutoring and written, that may manifest itself in the imperfect ability to . . . opinion ton conceded, however, that courtney should be deemed eli- into consideration whether a child has a severe discrepancy ingly. see, e.g., adams v. oregon, 195 f.3d 1141, 1151 (9th tory endorses this model. see h.r. rep. no. 108-77, at 107 courtney's grandfather, michael p., filed a complaint individually and (b) the student demonstrates a severe discrepancy vate school tuition at assets, private tutoring, and related agree it does, when a school district offers a child inadequate united states court of appeals municipalities. similarly, the only political subdivisions in hawaii are four for special education because her academic achievement was under the "specific learning disability" classification because courtney g., a minor with dyslexia, by and through her student's response to scientific, research-based inter- 17050 michael p. v. department of education under idea, all states have an obligation to ensure that children with dis- age or grade level standards; and (2) insufficient progress the hearing officer laid out the factual basis for his deci- napa valley unified sch. dist., 496 f.3d 932, 938 (9th cir. supra at 123-27; h.r. rep. no. 108-77 at 112 (2003). the hazzard also noted that courtney struggled with word recog- quarter of the fifth grade on november 29, 2006. at the meet- nificantly lower than her iq score. evaluation; dr. ferguson, a certified teacher of dyslexic stu- mendes concluded that courtney's overall language skills vices, was appropriate and to award reimbursement accord- courtney ineligible for services under the individuals with detrimental to the children of hawaii and contrary to legisla- tion. including testimony by courtney's expert witnesses. second, hawaii doe's "in-depth achievement evaluation" con- of state constitutional education clauses: evidence from the we "must give deference to the [hearing officer]'s findings, i. hawaii doe's regulations requiring exclusive reli- particularly when . . . they are thorough and careful[,] [and] dence is weighed, as it has the ability to delve deeply into fac- ble for special education approximately one month after hawaii doe denied court- hawaii doe eventually amended the unlawful regulations the formal academic assessment indicated that courtney's ney did not need special education because she was a "specific learning disability" and is eligible for services according to dr. royston, the critical related services, such as transportation. see, e.g., union sch. because it delays early treatment. see weber, supra at 124. vices to address her reading fluency and vocabulary deficits. with reading could be addressed through assistance in the reg- 300.8(c)(10)(i); and (2) she needs special education. 20 ancy model. but this prohibition was clearly intended to limit at the end of courtney's fourth grade year, the evaluation determination of fact, and with experience in fulfilling that remarkably disrespectful towards the state, simply because woodcock-johnson iii tests of achievement ("wj-iii"), her back to the district court to determine, by a preponderance of determining whether a child has a specific learning disability strengths or weaknesses in performance consistent with a "specific learn- 17040 michael p. v. department of education 735 f.2d 1178, 1183 (9th cir. 1984). unfortunately, the designed to meet their unique needs and to assure that the these regulations incorporate the "response to intervention model" as local districts with student populations that far exceed decisions, performing administrative functions, and providing the district court affirmed the hearing officer's decision vided education to 1.1 million students. hawaii's doe served only about discretion of local school districts. see 34 c.f.r. cation on the existence of a "severe discrepancy" between weber, supra 128. "thus, the definition of disability and the state board of education, is responsible for making policy school in hawaii. during this period, courtney struggled with pregerson, circuit judge: legal standard"); in re bradford, 112 b.r. 347, 352 (9th cir. 4. november 29, 2006, eligibility meeting 17041michael p. v. department of education cific learning disability," a right every other school district not progressing adequately with regular intervention, hawaii hawaii doe was required to promulgate regulations that are hearing, and language abilities, speech pathologist hanna expense, hired dr. kathy ferguson ("dr. ferguson"), who is was 82, which was in the low-average range. however, aca- i. hawaii doe's regulations requiring exclusive on the kaufman test of educational achievement, second before: betty b. fletcher, harry pregerson, and between actual achievement and intellectual ability agency just because it also provides educational services b. factual background 17036 michael p. v. department of education without special education. we must defer to the hearing offi- argued and submitted between courtney's sub-test scores indicate that she has a added). education. the wj-iii and ktea-ii scores, and the observa- and authority in hawaii is unusually tilted toward state government versus educational agency," as the majority opinion claims, at 17040. ancy model" at courtney's final eligibility meeting. this of the "response to intervention model." the hawaii regula- edelen-smith, a professor in the special education depart- 17042 michael p. v. department of education tricts to use an alternative model to determine whether a stu- code r. 8-60-41. accordingly, hawaii doe procedurally courtney's fourth and fifth grade years. marily arguing that hawaii doe improperly relied exclusively appropriate amount of reimbursement. assessment showed that courtney possessed average intelligence. never- informal reading test. courtney performed very poorly on wrong for the majority to substitute its judgment for that of help because she was so far behind. according to dr. fergu- read, write, spell, or to do mathematical calculations, includ- mined that courtney did not qualify for special education whether she had a "specific learning disability." we have enjoys. she could not demonstrate a "severe discrepancy" between her crepancy" between actual achievement and intellectual ability.3 tions implementing the 2004 amendments to idea on august was mild. the hearings officer, noting substantial evidence of although courtney's mother requested reimbursement for non-doe 17038 michael p. v. department of education a need for special education and services, haw. code r. 8- unique circumstances, hawaii doe argues that 300.307(a) order affirming the hearing officer's decision and remand continuing to operate under regulations that required use of in a way that reflects the intent to permit the local agency to either (1) insufficient progress, or (2) a pattern of strengths or violated idea by requiring use of the "severe discrepancy royston ("dr. royston"), a hawaii doe school psychologist. league or to the state of hawaii. we merely hold hawaii and hawaii doe 56-15, and that she did not qualify for special education under require an exception for hawaii. the hawaii department of hawaii doe presented expert testimony by dr. abigail grade year before she started that [individualized dyslexia learning disabled students, 40 creighton l. rev. 229, 259 5 crepancy" between intellectual ability and academic that hawaii doe may not use the "severe discrepancy model" courtney's mother produced four expert witnesses at the hawaii doe never applied this alternative model to deter- of these diagnoses are not at issue in this appeal. approved grade-level standards: 1414(b)(6)(b) ("in determining whether a child has a spe- psychologist who performed courtney's neuropsychological prehends at about the [second to third] grade level." the reality, courtney was showing substantial progress before she by the middle of her fourth grade year, courtney was 2.4 mentary schools or secondary schools in a city, county, town- no other "local school districts" within that state to exercise the district court held that 300.307(a) does not bar use of mess, 57 buff. l. rev. 83, 123-24 (2009). background response to this dissent is remarkably unpersuasive. the allow[s] local educational agencies to continue to use the dis- the united states department of education issued regula- achievement. moreover, these new regulations permit use of the "severe discrepancy model" and did not permit use of the classroom. 300.307(a) would deprive hawaii doe of its right to vention model." see 34 c.f.r. 300.307(a)(1). role comes expertise."). therefore, the district court is the u.s. 564, 574 (1985)) ("the trial judge's major role is the abilities residing in their state are identified, located and evaluated. see 20 whether courtney's privately procured education, including a. statutory background that courtney was ineligible for special education under reading proficiency" according to a standardized state test. mother's expense, she still remained in the "at risk" category. hawaii is the only state in the nation that has placed the pri- academic year, according to the state's reading assessment, to address these growing concerns, congress eliminated whether hawaii doe erroneously denied courtney eligibility regulations required students to demonstrate their need for special education services but to leave parents without relief the majority live. it is where i live: the state of hawaii. tual abilities, that her reading performance was substantially cer's appropriate conclusion that a given child did not demon- educational agency and treats it instead as if its role was that 17053michael p. v. department of education because it is a state agency, lacks the ability to decide for iii. reimbursement model." dis. op. at 17049. our colleague further notes that "[t]he final regulations that called for use of that measure. but in doing so, hawaii did between actual achievement and intellectual ability scores. entrusted with idea compliance. 4 rights of such children and their parents or guardians are pro- graph (a); and state of hawaii. nonetheless, i view the majority opinion as hawaii, honolulu, hawaii, for the defendant-appellee. (2007). a student who does not progress adequately after between her intellectual ability and academic achievement and articulation abilities to succeed in a regular education filed september 8, 2011 gence. id. moreover, education experts have criticized the classification. we remand to the district court to determine grade levels behind in reading. cal evaluation of courtney. the federal regulations did not define "severe discrepan- cation, "about us," http://doe.k12.hi.us/about/index.htm (last visited aug. point. courtney's mother concedes that the federal regulations although the amended statute does not require school dis- to fail" approach. see weber, supra at 131-33; h.r. rep. no. ty."2 related to reading and math fluency. marks omitted). 3 states from requiring local districts to use the severe discrep- evaluations at the due process hearing, she does not request such reim- began her tutoring with dr. ferguson in january 2007. burns richard r. clifton, circuit judges. possessed only low-average intelligence, but dr. murphy-hazzard's under idea, (2) whether courtney's placement at assets and tions were effective beginning october 13, 2006, and there- 17049michael p. v. department of education identification of learning disabled students become linked to opinion by judge pregerson; bursement in her civil action. june 18, 2010--honolulu, hawaii tion is deemed eligible for special education. see id.; see also ability for special education eligibility, 28 (2006). hawaii dist. v. smith, 15 f.3d 1519, 1528 (9th cir. 1994) (holding ment, is the local educational agency for hawaii. it would in the more egregious situation in which the school district [5] a procedural violation of idea is harmless unless it november 29, 2006. courtney's eligibility for special education as a result the fourth grade, courtney was placed in the "at risk" cate- learning disability. haw. code r. 8-56-26(b). the doe lic education simply to evade the regulation in order to be on february 29, 2008, the hearing officer issued his deci- see 34 c.f.r. 300.309(a); see also huefner, supra at (iv) basic reading skill (including phone- cific learning disability" classification and requested intensive that congress intended for the decision to be made by the . . . . galindo testified that she did not believe courtney needed we need not reach this argument because we reverse and remand on the idea clearly indicated the intent of congress to "specifically report and the results of informal reading tests conducted by cable. if that were so, any state could effectively remove from any local u.s.c. 1401(3)(a), 1401(30)(a). for many years, federal the "severe discrepancy model." this holding misses the year, indicated that she was reading at the fourth grade level. hearing officer had a sufficient basis to conclude that court- demic assessments conducted by the doe in may 2006 indi- findings carefully and endeavor to respond to the hearing offi- local educational agencies from using the severe discrepancy not some state overseer. the majority opinion justifies its permitted to make. i dissent. courtney special education services. courtney's mother and reading practice at home with her grandfather, small group 300.307(a)(1). second, states "[m]ust permit the use of a sch. dist. v. smith, 15 f.3d 1519, 1524 (9th cir. 2004). it is assessment. on that test, she "went back and reread for under- model, but that language was deleted in response to concerns treat hawaii as a second-class state, unable to make for itself cer's resolution of each material issue. after such consider- move away from the severe discrepancy approach itself, by repealing the relative to age, state-approved grade-level standards, sively on the "severe discrepancy model" to determine tion which emphasizes special education and related services district court to determine whether private services obtained educational agency, which creates statewide education regula- [7] as discussed above, the district court must determine her iq. hg-bmk model that serves as the determining factor of whether a child progressing with "regular education intervention." dr. roys- result only by assuming the correctness of that result. the a specific learning disability, a local educational agency may we must accord deference to the hearing officer's findings hawaii doe did not "shirk its responsibilities as a state the student's age or to meet state-approved grade- a recurring basis, but proposals to break the state into smaller local school the final regulations for the individuals with disabilities procedurally violated idea.11 cised its authority under the idea to choose whether or not 1487 (9th cir. 1992) (awarding parents reimbursement for model" is that "a majority of students can learn if effective 9 hibits states from requiring local districts to use the severe discrepancy the majority ignores the fact that the hawaii doe is the local ation of additional evidence to determine whether a "severe must give `due weight' to judgments of educational policy." majority opinion, at 17030. it simply exercised its judgment as to what sion, listening comprehension, written expression, basic read- (vi) reading comprehension; courtney had a "specific learning disability." although the hawaii doe, though obviously an arm of state govern- advances that we see that she made by the end of the fifth because the statute and regulation, read logically, do not in june 2006, courtney's mother requested another special authority of the hawaii department of education ("hawaii cated by hawaii doe's evaluation. according to hawaii doe, courtney ulations, these new regulations do not require a "severe dis- treated differently, and its inability to do so underscores the notably, the statute was not amended to say that a local 2 achievement relative to age, grade-level standards, or intellec- for further proceedings to determine (1) whether courtney has the district court's order affirming the administrative hear- similar to the average score of fifth graders in her school and like a local school district and, thus, the regulation's prohibition is inappli- significantly improve during the first quarter of the fifth ress. by the end of her fifth grade year, courtney "approached mother and guardian ad litem, elizabeth g.,1 tends to under-identify children with below average intelli- haw. code r. 8-60-41(a)(1)-(2). unlike hawaii's prior reg- 17027michael p. v. department of education and avoid academic failure. ing to use the severe discrepancy standard. hawaii should private school placement, private tutoring and related ser- with federal law until november 23, 2009--more than three ney did not demonstrate a specific learning disability.4 that school district is not one in which either of the judges in courtney also argues that hawaii doe violated idea by failing to commensurate with her ability, as measured by her iq.6 as guardian ad litem of courtney, appealing the hearing officer's deci- defined a "severe discrepancy" as a 1.5 standard deviation vices coordinator, resource teacher, several general education teachers, [6] under hawaii's new regulations, a child will be 17054 michael p. v. department of education hawaii doe use the "response to intervention" model. (viii) mathematics problem solving; or for the district of hawaii standing and went back and corrected word substitutions," these witnesses included dr. murphy-hazzard, the clinical officer's decision was entitled to deference because the hear- the specific learning disability category, haw. code r. 8- ability." the majority's interpretation contradicts legislative intent liza galindo ("ms. galindo"), courtney's fifth grade teacher. 300.307(a)(1). by its terms, 300.307(a)(1) applies to states eligible for special education because no "severe discrepancy" courtney was reading at a level near-equivalent to her peers. nected discourse while reading at an age appropriate level." education under the "specific learning disability" classifica- "basic reading" and "reading comprehension" scores were under the amended regulations, the child must demonstrate either (1) ute allows but does not require use of that model. see 20 may use the "severe discrepancy model" under the 2006 fed- 8 evaluation meeting with hawaii doe. at the meeting, court- the record does not compel the conclusion that courtney's consider the results of dr. murphy-hazzard's neuropsychological evalua- by a difference of at least one and one-half standard mother's expert witnesses, dr. royston had never met court- courtney's mother as guardian. the district court ultimately dismissed 17035michael p. v. department of education dyslexia reading tutoring, which resulted in significant prog- make far more sense for us to treat it that way. idea defines order in one or more of the basic psychological processes eligibility determination. that it exceeded the language of the statute. see 70 fed. reg. onne bd. of educ., 602 f.3d 553, 569 (3d cir. 2010) (finding exposure to increasingly intensive and individualized instruc- defendant-appellee. other school district in the country has that authority, even education evaluation of courtney, including a neuropsy- dr. murphy-hazzard evaluated courtney at the beginning that requirement. as amended, 20 u.s.c. 1414(b)(6)(a) exactly what we are not supposed to do. over the last decade, scientific research has established that direct provider of educational services, hawaii doe is incor- her reading skills. meeting on november 29, 2006. instead, congress left the matter to the local district's judg- school for dyslexic and gifted children that incorporates spe- ties, as federal law authorized it to do. as such, in 2009, the los angeles unified school district served approximately reliance on the "severe discrepancy model" did not 11 eral law. haw. code r. 8-60-41(a)(1)-(2). under these new, neither the federal statute nor the regulations prevent any courtney clearly struggled with reading, and she demon- determine the precise relief that should be afforded to the stu- to establish eligibility under the "specific learning disabili- ings officer's ("hearing officer") conclusion that the hawaii ney eligibility for special education, courtney took another 2007). a child experiences an egregious loss of educational 1. administrative proceedings is acting within the boundaries of federal and state law. union or intellectual development, that is determined by the form adequately in school. haw. code r. 8-56-15; 8-60- tions in effect at the time of courtney's final eligibility meet- [2] the plain and unambiguous language of 300.307(a) were still pending, courtney's mother withdrew courtney be particularly strange for the act to provide a remedy, as all 17052 michael p. v. department of education tion. model to determine the existence of a specific learning dis- scale for children -- fourth edition. courtney's full-scale iq hawaii doe agreed to an in-depth achievement evaluation of hawaii's.2 17048 michael p. v. department of education michael p. from the lawsuit for lack of standing. this determination is not [3] hawaii doe argues that it is not subject to needed special education to benefit from general education november 2006, at the beginning of courtney's fifth grade discussion mic awareness, phonics, and/or vocabu- in favor of student, but remanding to the district court to the judgment of the district court should be affirmed. it is it does not limit how the state may define eligibility criteria measure to use in determining the existence of specific learning disabili- sion, concluding that hawaii doe properly determined that abilities and the conflicting trends in legislation affecting provided by the parent. haw. code r. 8-56-26(b) (repealed no town or city governments covering smaller areas. counsel courtney's fifth grade teacher. even though ms. galindo's statistically significant deviation, hawaii permitted consider- discrepancy standard or an alternative model by providing theless, no severe discrepancy existed between courtney's achievement "response to intervention model." accordingly, hawaii doe fifth-grade year. psychological examiner cigdem fernandez, 17029michael p. v. department of education a court should base its decision with respect to a child's eligi- paragraph (1)(a) when using a process based on the stituted within a state for either administrative control or performance on the 2007 state reading test was the direct any authority. but what does that establish? hawaii's state- and courtney's mother and grandfather. according to the majority, there is only one school district ney at assets school.7 cated that courtney was near-proficient in reading by her weaknesses in performance consistent with a "specific learn- 1 35864 (june 21, 2005); dixie snow huefner, the final regu- regulations left the choice of whether to use the severe discrepancy model provides that "when determining whether a child has a spe- 1202, 1212 (9th cir. 2008) (internal citations and quotation not be required to take into consideration whether a child has chological evaluation on a number of grounds, but ultimately does not operate public schools through smaller local districts. average, and her "broad reading" score was "low average." the typical situation where local agencies are entities other majority suggests that if the state of hawaii is treated as a from public school and, at her own expense, enrolled court- 17031michael p. v. department of education hired dr. peggy murphy-hazzard ("dr. murphy-hazzard"), a tific, research-based intervention"). language in proposed sixth grade in 2007, courtney attended a public elementary model" to determine whether a child is eligible for special dent, including reimbursement). she received from dr. ferguson. such tutoring qualifies as instruction appropriate for the student's age or state- appeal from the united states district court sponse to intervention model." fluency skills, which were at the second to third grade level. to hold otherwise would be result of her weekly reading tutoring with dr. ferguson. in "congress enacted idea in 1970 to ensure that all children ship, or school district." 20 u.s.c. 1401(19)(a). hawaii has federal regulations took effect. these new regulations permit levels behind. dr. ferguson provided courtney with weekly process based on the child's response to scientific, research- perry a. zirkel, the legal meaning of specific learning dis- these experts consistently testified that the discrepancies ress to meet age or state-approved grade-level stan- ment and ability. id. second, the child must demonstrate wasn't set up to evade those enactments. and nobody can based intervention." 34 c.f.r. 300.307(a)(2). these regula- tricts. id. thus, hawaii doe serves both as the state der." the school psychologist, psychological examiner, and speech pathol- or alternative procedures to the discretion of local school districts." dis. because her scores on standardized achievement tests were determination. accordingly, we reverse the district court's 1412(a)(11). hawaii doe failed to fulfill this obligation by authority in hawaii the same authority that is expressly recog- rebecca a. copeland, department of education, state of the majority's decision is not based on any particular ani- applied at courtney's eligibility meeting to conform with fed- fore were controlling at the time of courtney's final eligibility (ii) listening comprehension; an evaluation team may find a child eligible for special educa- gibility hearing did not procedurally violate the idea. with hawaii doe's conclusion that courtney was not eligible ular classroom setting. courtney's improvement during her strategies galindo had not seen before. by the spring of that 10-11. the regulations prohibit states from requiring school educational agency may condition eligibility for special edu- since the previous regulations were lawful, it should not be courtney was eligible for special education under the "spe- team4 lations were amended in 2004 and 2006, so it obviously hearings. see cooter & gell v. hartmarx corp., 496 u.s. and made no exception for it. classroom." courtney's score on a state standardized reading cific learning disability . . . a local educational agency shall ("the committee is greatly encouraged by the growing use of ing skill, reading comprehension, mathematical calculation, or dents who provided courtney private tutoring; dr. patricia deemed eligible for special education under the "specific nized in all other school districts. the majority opinion gives ing officer considered and discussed the available evidence, helen gillmor, senior district judge, presiding tion under the "specific learning disability" classification if as the majority opinion notes, at 17028, in 2009 hawaii decided to ing mental disabilities in higher education: a practical vices. she surmised that hawaii doe determined that court- 23, 2011). discretionary authority to choose whether to use the severe cific learning disability" classification.9 test in the spring of 2007 was 296, which was on the upper assessment report, "courtney struggles as a reader, [is] able carl m. varady, honolulu, hawaii, for the plaintiffs- courtney also argues that hawaii doe shirked its child find duty. the amended hawaii regulation provides that an evaluation team may ing disability." see haw. code r. 8-60-41(a)(1)-(2). assistance to states for the education of children with dis- an evaluation. see 34 c.f.r. 300.502(c)(1). middle of courtney's fifth grade year. based on her initial reading and consistently read below grade level on both stan- which they review." see wilson v. marana unified sch. dist., culties with reading were severe enough to warrant special the severe discrepancy measure. in 2004, congress eliminated to decode at about the [third to fourth] grade level but com- we review a district court's findings of fact in idea cases d.c. no.minor, to qualify for services under idea, a child must show (1) the to the alternative "response to intervention" model. the stat- measured courtney's iq using the wechsler intelligence school placement is permitted as a related expense); w.g. v. ing disability." id. 20 u.s.c. 1415(i)(2)(c)(iii) provides that courtney's eligibility for special education under the "specific (iii) written expression; 384, 402-03 (1990) (noting, in the context of rule 11, that tions, and as the local school district, which provides educa- the sixth grade. before dr. ferguson's tutoring, courtney read courtney's adequate reading performance, properly rejected by student's parents were appropriate); accord d.s. v. bay- only one school district. the hawaii doe, together with the the severe discrepancy model or alternative procedures to the the district court held as a matter of law that hawaii doe level standards in one or more of the following areas, department of education, id. (internal citations and quotation marks omitted). "we ney's lack of progress, courtney's mother, at the family's 2009). hawaii doe did not amend its regulations to conform v. is also wrong in its interpretation of federal law regarding the hawaii doe procedurally violated idea by applying regu- school placement is appropriate. see t.a., 129 s. ct. at 2495- existed between courtney's iq and her achievement on stan- 5. individualized dyslexia tutoring private dyslexia reading tutoring is appropriate, and (3) the clifton, circuit judge, dissenting: were in the average range and that she has "adequate language courtney's fourth grade year. according to the classroom violate idea has a specific learning disability"). strated signs of dyslexia. but according to school psychologist the hearing officer. it is even more wrong for the majority to achievement and intellectual ability. see dixie snow huefner, u.s.c. 1414(b)(6)(b) ("in determining whether a child has intervention model']."). hyperactivity disorder" and "mixed receptive-expressive language disor- inadequate achievement, or (2) a severe discrepancy between achievement of an expert or teacher contradicted the findings of courtney's 15 f.3d at 1524. we should do so here. mus toward me, nor, i am sure, by any antagonism toward the hazzard diagnosed courtney with dyslexia and recommended cy," but rather, left the matter to the discretion of each state. the officer discussed, in detail, instances where the testimony crepancy model." see h.r. rep. 108-77, sec. 204, at 107 fourth grade level reading comprehension and even struggled fell in the low-average range, but comprehended at a fourth team discussed the neuropsychological evaluation at length. idea only grandfather asked the hearing officer to determine that unreasonably denies a child access to services altogether."). discrepancy" existed, such as work samples and information cy" between academic achievement and intellectual ability that courtney did not need special education because the evi- could have so provided if that was its intent, but it did not. to comprehend at the third grade level. frustrated with court- a process that determines if the child responds to scientific, without permitting use of the "response to intervention lations for the individuals with disabilities education districts and take on for itself the entire responsibility for pub- bd. of trs. of target range sch. dist. no. 23, 960 f.2d 1479, 4 actual achievement and her intellectual capacity. both the and non-doe evaluations, and compensatory education for (book review) (noting that the federal regulations allow local crepancy model," resulted in an improper special education informal reading tests showed that courtney read below grade son, courtney needed more intensive special education ser- disabilities ineligible for services under idea and the private define `due weight' as follows: [t]he court, in recognition of 6. assets school edition ("ktea-ii"), her "reading" and "reading fluency" question was whether courtney "had started to make the certified to teach dyslexic students, to help courtney improve unlawful regulations, which require use of the "severe dis- need for special education. 20 u.s.c. 1401(3)(a). tests, reading a fifth-grade-level passage with 95 percent local school district was further demonstrated by its approach permit use of the "severe discrepancy model," but contends her iq score. dr. ferguson testified from her personal experi- necessary to consider courtney's eligibility under the deference to the policy decisions of a school district when it dent has a "specific learning disability," it expressly permits towards the end of courtney's fourth grade year, court- ogist disputed some of these diagnoses at the eligibility meeting held on cated that her reading skills were in the average range. on the despite courtney's progress, courtney still needed more low iqs are just "slow." see suzanne wilhelm, accommodat- achievement, or (2) a severe discrepancy between achieve- instruction." townsend, supra at 259. many experts favor the county governments, each covering one or more entire islands. there are courtney's sixth grade year, while administrative proceedings courtney's mother seeks reimbursement for courtney's pri- tests, courtney could only read at a third grade level, which (2007). the final regulations left the choice of whether to use the expertise of the administrative agency, must consider the local educational agency from using the severe discrepancy eligibility under idea, 36 j.l. & educ. 155, 161 (2007) guardian ad litems of courtney 7 jurisdiction under 28 u.s.c. 1291, and we reverse and dissent by judge clifton ii. whether courtney was erroneously found ineligi- cialized instruction into its curriculum. at the beginning of no logical reason for doing so. appropriate authority to assess and reach a conclusion as to improve by the time of her final eligibility meeting, ms. severe learning disability eligibility criteria). is not the best indicator of academic potential. see susan e. state could effectively remove from local school districts the hawaii doe's eligibility determination and requested that or in whole." n.b. v. hellgate elementary sch. dist., 541 f.3d and roe reading assessments conducted in august 2006 and reversed and remanded. in the entire country which is forbidden from deciding for ii. courtney was not erroneously found ineligible for u.s.c. 1412(a)(3). hawaii doe did not conform its regulations to federal law mathematical reasoning."); see also h.r. rep. no. 108-77 at dr. ferguson began tutoring courtney in january 2007, the 17034 michael p. v. department of education 10 level at the start of the fifth grade and that courtney did not ney's mother and grandfather requested that hawaii doe use ence tutoring courtney that courtney had a severe reading n. 10. so what? if any other state adopted hawaii's system of special education eligibility criteria in two ways. first, states tutoring]." a severe discrepancy between achievement and intellectual a1.pdf; new york city department of education, "about us," criteria. first, the child must demonstrate either (1) inadequate to the same standards congress has chosen for all states and state agencies appeals from 300.307(a)(2); paul secunda, "at best an inexact science": district for the entire state. that subject has been discussed in hawaii on examiner concluded that courtney's "sight vocabulary, pho- moreover, congress was presumably aware of hawaii's unique situation special education under the "specific learning disability" clas- op. at 17048. but, according to the dissent, hawaii doe's unique for special education on the existence of a "severe discrepan- ation; it does not require a school district to adopt the conclusions of such gible for special education if her progress during the fifth vention; or situation--as a direct provider of educational services--renders it more evaluation delayed or incorrect identification of students who are eligible on both tests. her scores were equivalent to if not higher than with a "specific learning disability" before academic failure fully, dissent. standard of review school districts substantial latitude in choosing between . . . , a local educational agency shall not be required to take a possible way to identify a child eligible for special education under the 2. district court proceedings lary); wide system existed long before the federal statute and regu- guide to ada requirements, 32 j.l. & educ. 217 (2003). by her sixth grade year, according to galindo, courtney had bility on the preponderance of the evidence. the district court "specific learning disability" classification. it has not "required" that school districts under its supervision 17027-28, federal regulations formerly compelled the use of learning disability" classification, a primarily fact-based education is the "local educational agency" for hawaii; it is and a formal academic assessment, conducted by a "psycho- ability. indeed, the statute, as amended, is explicitly worded ment at the university of hawaii; and dr. peter dorwick, a existence of one or more disability classifications, and (2) a education under the "specific learning disability" classifica- tual development, which indicates a "specific learning disabili- improvement act (idea `04), 217 ed. law rep. 1, 8-9 educational services directly to students.1 use of the "response to intervention model." see 20 u.s.c. involved in understanding or in using language, spoken or constitutional convention debates, 70 alb. l. rev. 927, 965 "severe discrepancy model" is based on the premise that hawaii has decided to operate its public schools through a and not to local school districts. see john dinan, the meaning chological evaluation and a dyslexia test. hawaii doe agreed iii. conclusion requests. after courtney's pediatrician recommended that dr. royston did not attend any of courtney's special educa- dr. abigail royston, the evidence suggested that her dyslexia scores were rated as average. the doe's psychological dr. murphy-hazzard found that courtney had a higher iq than indi- haw. code r. 8-56-26(b) (repealed nov. 23, 2009). alter- a special education resource teacher for the school district, 688,000 k-12 students. new york city's department of education pro- (1) (a) the student does not achieve adequately for and the plain text of the statute and federal regulations. the higher than her iq score. showed substantial improvement on the november 2006 c.f.r. 300.307(a)(1), (2). as a state educational agency, 180,000 students. see los angeles unified school district, "fingertip directly to students. under the amended regulations, no state occurs, whereas the "severe discrepancy model" takes a "wait average iq, hawaii doe determined that courtney was not ment and intellectual ability sufficient to constitute a specific gory according to a standardized literacy test. despite daily 17043michael p. v. department of education disabilities education act ("idea"). hawaii doe deter- single statewide school district. because the majority opinion 17033michael p. v. department of education opinion to several additional assessments, but rejected these particular michael p.; elizabeth g., as 17047michael p. v. department of education the "severe discrepancy model" is not necessarily a good indi- 17032 michael p. v. department of education what states may compel local educational agencies to do, in "specific learning disability". see haw. code r. 8-60-41(a). sion. the district court granted leave to amend the complaint to substitute with disabilities are provided a free appropriate public educa- a fourth grade passage with only 90 percent accuracy and 10 nics, structural analysis skills, and reading comprehension mined that courtney did not need special education because ing center did not qualify as special education. in addition to private dyslexia tutoring, dr. ferguson recom- no "severe discrepancy" existed between her actual achieve- expenses.12 dr. murphy-hazzard also diagnosed courtney with "attention deficit academic achievement and intellectual ability, and every state cess hearing, alleging that hawaii doe improperly denied grade was attributable to the individualized dyslexia tutoring deviations in one or more of the areas in subpara- on march 15, 2007, in the middle of courtney's fifth grade sion and carefully considered all of the testimony and reports. for services under idea); accord weber, supra 123-27. 108-77, at 112 (2003). ment and intellectual ability. the hearing officer also noted dyslexia tutoring and remediation, reimbursement for tutoring 1:08-cv-00146-plaintiffs-appellants, [1] federal regulations cabin states' discretion to create 41(a)(1)-(2). the doe determined that courtney's difficulties reading intervention at school, and private tutoring at her a decision that every other school district in the country is lations that require exclusive reliance on the "severe discrep- expert witnesses. his conclusions that courtney did not show it would itself use the severe discrepancy standard.3 intellectual ability and academic achievement, and (2) insufficient prog- delimiting the legal contours of specific learning disability a single statewide school district, there would, of course, be 17026 michael p. v. department of education (v) reading fluency skills; majority opinion is even emptier, if that's possible. that con- (b) the student exhibits a pattern of strengths and for publication to the findings of the hearing officer, i respectfully, but force- argument that hawaii doe violated idea by relying exclu- "local educational agency" under the regulation, then "any percent comprehension. districts in the country do. not the role of this court to substitute its "own notions of for the ninth circuit for clear error, and we review its conclusions of law de novo. tected." forest grove sch. dist. v. t.a., 129 s. ct. 2484, 2491 a student to qualify for special education absent a "severe dis- (2007). unlike other states, hawaii only has a state educa- ney's mother and grandfather requested a special education "response to intervention model" because it identifies students the hearing officer did not err in finding that courtney did remand. direction of, or to perform a service function for public ele- 6 deprives the child of an educational opportunity. see r.b. v. 300.308. at courtney's meeting, the following individuals participated: doe once again determined that courtney was not eligible 17039michael p. v. department of education alternative measures that are being used in place of the iq- strate eligibility for special education. see union sch. dist., after intervention, or a pattern of strengths and weaknesses in states to allow school districts to use the "response to inter- comprehension and fluency. courtney was ineligible for special education under the "spe- group to be relevant to the identification of a specific ceiling as a floor: the changing definition of learning dis- thus, our next task is to determine whether hawaii doe's 112 (2003) (indicating that congress is "discouraged by the cific learning disability" classification. although the hearing abilities and preschool grants for children with disabilities, courtney demonstrated "the ability to read high-frequency mended that courtney enroll in assets school, a private on the "severe discrepancy model" to determine whether


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