E.M. v. Pajaro Valley Unified School District Office of Administrative Hearings
2011 U.S. App. LEXIS 14326
| 9th Cir. | 2011Background
- E.M. is a bilingual PVUSD student with average to above-average intellect but poor academic performance.
- PVUSD conducted multiple evaluations during fifth grade; treatments in regular classes; E.M. designated at risk for retention but not deemed eligible for special education.
- Dr. Wright (2004, WISC-III and WJ-III) diagnosed a learning disability; PVUSD later used K-ABC and WJ-III (2004-2005) and found no eligibility.
- November 2005 to February 2008: Dr. Kaspar diagnosed auditory processing disorder; PVUSD reassessed and then found E.M. eligible in February 2008.
- OAH issued a decision for PVUSD; district court denied supplementation; PVUSD re-assessed and found eligibility in 2008; appellate court remanded for further consideration.
- Dissent criticizes the majority’s handling of the Jacques report and potential other health impairment claim, and would affirm the district court entirely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PVUSD showed a severe discrepancy and a basic psychological process disorder. | E.M. showed a severe discrepancy per the K-ABC and other scores; a basic psychological process disorder was present. | PVUSD used reasonable, non-selective testing and found no severe discrepancy or basic psychological process disorder. | Partially yes: district court erred in excluding some supportive data and must reevaluate using proper standards. |
| Whether the district court properly admitted after-acquired evidence (Jacques report). | Jacques report could illuminate reasonableness of PVUSD's 2004 actions. | Jacques report is not relevant to the 2004 evaluation and should be excluded. | District court erred in excluding the Jacques report; remand to consider relevance. |
| Whether E.M. could qualify as other health impairment due to auditory processing disorder. | Auditory processing disorder can qualify as OHI under IDEA. | OHI category does not include auditory processing disorder under regulations at issue. | Remand to determine if A.P.D. qualifies as OHI and whether PVUSD fulfilled assessment obligations. |
| Whether ADD/ADHD claim was properly considered or waived. | E.M. raised ADD/ADHD complaints in district court filings. | ALJ appropriately struck ADD/ADHD allegations for not being in the complaint. | ACCORDINGLY, the district court did not err in striking ADD/ADHD allegations; no waiver. |
| Whether the 2008 assessment should be considered on remand. | The 2008 assessment was part of the administrative record. | Record not adequately included; remand to consider. | Remand to consider the 2008 assessment on the merits. |
Key Cases Cited
- Ford v. Long Beach Unified Sch. Dist., 291 F.3d 1086 (9th Cir. 2002) (districts have discretion in selecting diagnostic tests for eligibility)
- Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467 (9th Cir. 1993) (additional evidence review; proper scope in IDEA cases)
- Adams by & through Adams v. Oregon, 195 F.3d 1141 (9th Cir. 1999) (consideration of after-acquired evidence; not judged purely by hindsight)
- Susan N. v. Wilson School District, 70 F.3d 751 (3d Cir. 1995) (support for evaluating reasonableness of district actions and after-acquired evidence)
- Town of Burlington v. Dep't of Educ., 736 F.2d 793 (1st Cir. 1984) (discussion of admissibility of expert testimony and after-acquired evidence)
- Larry P. by Lucille P. v. Riles, 793 F.2d 969 (9th Cir. 1984) (cultural bias concerns in testing; need for safeguards)