E.M. Ex Rel. E.M. v. Pajaro Valley Unified School District Office of Administrative Hearings, 758 F.3d 1162

E.M. has an auditory/central auditory processing disorder; PVUSD initially found him ineligible for special education in 2004-2005.
Plaintiffs pursued administrative and federal actions after PVUSD denied eligibility under SLD in 2005, then later reassessed eligibility in 2008-2009.
PVUSD used multiple IQ tests (WISC 104; K-ABC 111; TONI 98) and chose the middle score (104) to assess eligibility, finding no 22.5-point severe discrepancy in 2005.
California/OCR and later federal rulings remanded to consider whether E.M. could be an OHI due to auditory processing, but district court and Ninth Circuit ultimately affirmed PVUSD’s 2005 decision as reasonable.
DOE policy letters and congressional purposes support considering multiple categories for disability, not limiting to a single label, but this did not retroactively undermine the 2005 determination.
E.M. later was found eligible for special education in 2008-2009; the current decision affirms the 2005 denial as reasonable and defers to DOE interpretation that OHI can apply to auditory processing disorders.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was PVUSD reasonable in 2005 to deny SLD eligibility?	E.M. had an auditory processing disorder suggesting a significant impairment	PVUSD appropriately used multiple tests and relied on the 104 WISC score, showing no 22.5-point discrepancy	Yes, PVUSD's 2005 determination was reasonable
Should a central auditory processing disorder qualify under OHI, and does DOE deference apply?	DOE position supports OHI eligibility for auditory processing disorders	DOE interpretation is persuasive but not controlling unless adopted	Yes, DOE interpretation is persuasive; a child may qualify under more than one category
Did PVUSD act unreasonably in not considering OHI for 2005 based on the record?	Plaintiffs contend OHI should have been considered in 2005	Record lacked evidence of chronic/acute health problems or limited alertness in 2005	No, PVUSD did not unreasonably fail to diagnose OHI in 2005

Schaffer v. Weast, 546 U.S. 49 (U.S. 2005) (burden of persuasion rests with the party seeking relief)
K.D. v. Dep’t of Education, 665 F.3d 1110 (9th Cir. 2011) (review of district court factual determinations de novo with deference to education policy)
United States v. Mead Corp., 533 U.S. 218 (U.S. 2001) (agency interpretations may receive Skidmore deference)
Forest Grove Sch. Dist. v. T.A., 557 U.S. 230 (U.S. 2009) (parents’ adequate remedy for unreasonable identification under IDEA)
Heather S. v. Wisconsin, 125 F.3d 1045 (7th Cir. 1997) (labels vs. actual educational needs under IDEA)
Chevron, U.S.A., Inc. v.NRDC, 467 U.S. 837 (U.S. 1984) (agency deference when statute is ambiguous)
Capistrano Unified School Dist. v. Wartenberg, 59 F.3d 884 (9th Cir. 1995) (agency interpretation of regulations may deserve deference)