*1
1057
1182;
longer
F.3d at
...
Husyev,
expiration
able.
528
Wakka
status
after
of
This
ry,
particu
”)
We remand this matter
the BIA so
“Wak-
kary
correct
apply
asylum
standard
submitted
application
his
...
determining
Singh
when
whether
satisfies
six
days
months and some
his status
after
extraordinary-circumstances
exception.
expired
Wakkary,
...”
V submitted application his seven months af- agency applied legal incorrect stan ter his A expired. status determination of Singh dards when it determined that had unreasonableness in that circumstance is changed extraordinary established precedent. consistent with our See Hu- circumstances, excusing untimely his appli syev (9th v. Mukasey, 528 F.3d Moreover, cation. its determination that Cir.2008) (establishing six months as a Singh application failed to file his within a deadline). presumptive pеriod reasonable of time after his lawful sum, In I agree that this case should be nonimmigrant expired is not sup status remanded to agency application of ported by evidence. substantial Accord the correct to the standard determination ingly, grant petition we Singh’s and re extraordinary circumstances mand this matter the BIA so that it can only, exist. For that I reason concur in apply legal the correct standards in the the result. Ornelas-Chavez, first instance. at 1058. not and do not We need reach
any parties. other urged issues GRANTED;
PETITION REMAND- ED. P.; G., MICHAEL Elizabeth as Guard RAWLINSON, Judge, Circuit . Courtney G., ian Ad Litems of an in
concurring the result: minor; Courtney competent G., an agree incompetent minor, I case should be Plaintiffs-Appel this lants, application manded for of the correct stan- dard to the determination of whether the v. petitioner has sufficient showing made EDUCATION, DEPARTMENT OF extraordinary circumstances excuse Hawaii, State of Defendant- the untimely filing asylum of his applica- Appellee. However, tion. I expressly disavow the No. 09-16078.
majority’s holding that the seven-month lapse expiration Singh’s between the Appeals, United States Court filing visa extension asylum and the his Circuit. Ninth ” application significance.... is “of little Argued Submitted June 2010. Majority Indeed, Opinion, p. n.13. Filed Sept. the governing regulation is to the con- trary. Reg. See 65 Fed. 76121-01 at (“Clearly, waiting six months or
Carl M. Varady, Honolulu, HI, for the plaintiffs-appellants.
Rebecca A. Copeland, Department of Education, Hawaii, Honolulu, State of HI, for the defendant-appellee.
Before: BETTY FLETCHER, B. PREGERSON, HARRY and RICHARD CLIFTON, R. Judges. Circuit Opinion by PREGERSON; Judge . by Dissent Judge CLIFTON. OPINION
PREGERSON, Judge: Circuit G., dyslexia, a minor with by
and through her mother and Guardian Ad
Litem,
G.,1
Elizabeth
appeals from the
district court’s order affirming the Ad-
Hearings
ministrative
Officer’s (“Hearing
Officer”) conclusion that
the Hawaii De-
(“Hawaii
partment
DOE”)
of Education
properly
found
ineligible for
services under the Individuals with Dis-
P.,
Courtney's grandfather,
Michael
filed a
mother as Guardian. The district
complaint individually and as Guardian ad
ultimately
court
dismissed Michael P. from
Courtney, appealing
Hearing
Litem of
Of-
standing.
lawsuit for lack of
This deter-
granted
ficer’s
decision.
district court
appeal.
mination is not at issue on
complaint
leave to amend thе
to substitute
(“IDEA”).
education.
U.S.C.
Act
abilities Education
1401(30)(A).
1401(3)(A),
many
§§
did
For
DOE determined
under
required
stu
qualify
years,
federal
disability”
classification
spe
to demonstrate their need for
dents
a “se-
not demonstrate
because she could
“specific learning
cial education under
actual
between her
discrepancy”
vere
a “se
showing
classification
capacity.
her intellectual
achievement and
between actual achieve
discrepancy”
vere
the district
Hearing
Both the
Officer and
ability.
Dixie
See
ment
rejected Courtney’s
argument
court
Huefner,
Regulations
Snow
The Final
*4
by relying
Hawaii DOE violated IDEA
with Disabilities Edu
the Individuals
exclusively
discrepancy
“severe
(IDEA '04),
Improvement
217
cation
Act
had a
whether she
model”
determine
(2007);
Rep. 1,
Ed. Law
8-9
see also
have
disability.” We
“specific learning
Weber,
Eligibility
The IDEA
Mark C.
1291,
§
and
jurisdiction
28 U.S.C.
under
(2009).
Mess,
83,
L.Rev.
57 Buff.
123-24
reverse
remand.
we
and
The federal
did not define
rather,
“severe
left the
discrepancy,”
BACKGROUND
to the
of
state.
matter
discretion
each
Statutory Background
A.
Zirkel,
Perry
Legal Meaning
A.
The
of
in 1970
“Congress enacted IDEA
Disability
Specific Learning
Special
all children
to ensure that
with disabilities
(2006). Hawaii
Eligibility,
Education
28
provided
appropriate public
are
a free
edu
discrepancy”
a 1.5
defined
“severe
emphasizes
cation which
achieve-
standard deviation between actual
designed
related
to meet their
and
services
ment and
scores. Haw.
unique
rights
to assure that the
needs and
8-56-26(b)
23,
§
(repealed
R.
Code
Nov.
and
or
parents
of such children
their
2009). Alternatively, if
tests
standardized
guardians
protected.”
Grove
are
Forest
a statistically
were invalid or
not reveal
did
T.A.,
230,
Sch. Dist. v.
557 U.S.
129 S.Ct.
deviation,
significant
permitted
(2009) (inter
2484, 2491,
reliance on the “severe model” premise underlying “response under-identify tends to children with below majority intervention model” “a is that Moreover, edu- average intelligence. Id. can learn if students effective instruction is cation have criticized the model as experts Townsend, provided.” Nicholas L. Fram- invalid, undermined, unreliable, easily Ceiling ing a as a Floor: The Changing it delays early harmful because treatment. Learning Disabilities and Definition Weber, supra See Conflicting Legislation Trends in Af- (cid:127) concerns, To these growing address fecting Learning Students, Disabled *5 discrep- the Congress eliminated “severe (2007). 229, Creighton L.Rev. A 259 stu- ancy” requirement when it reauthorized dent who does not progress adequately IDEA in 2004. See 20 U.S.C. exposure increasingly after to intensive (“[W]hen 1414(b)(6)(A) § determining and individualized instruction deemed a child has a specific learning id.; eligible special for education. See see ..., disability agency a local educational Weber, “Thus, supra 128. the defini- to required shall not be take into consider- disability tion of and the identification of child discrep- ation whether a has a severe learning disabled become students linked ancy between achievement and intellectual Townsend, supra to instruction.” at 259. expression, listening compre- in oral Many experts “response favor the to inter- hension, expression, reading written basic model” vention because it identifies stu- skill, comprehension, mathematical a “specific learning dents with disability” calculation, reasoning.”); or mathematical occurs, before academic failure whereas (2003) see also No. 112 108-77 at H.R.Rep. “severe model” takes a (indicating Congress “discouraged Weber, approach. “wait to fail” supra See IQ- reliance widespread on 131-33; 108-77, H.R.Rep. No. at 112 achievement model (2003). determining serves as the factor of wheth- specific er a child has a disabili- learning The Department United States of Edu- ty”). regulations implementing cation issued 14, on August amendments to IDEA Although the amended statute does 2006, which became effective October require school to use an alterna- districts 13, See Assistance to States tive model determine whether a student Education Children with Disabilities “specific learning has a it ex- disability,” and Preschool Grants Children with pressly permits “response use of the Disabilities, 71 Fed.Reg. intervention model.” See 20 U.S.C. 2006) (to (“In (Aug. be codified at 34 C.F.R. 1414(b)(6)(B) § determining whether 300.307). § regulations pro- amended a learning disability, child has a specific an vide that evaluation team find a agency may process local educational use a if child education under the child responds determines scientific, “specific learning classifica- research-based intervention ”). (1) Moreover, history ... legislative en- if child tion demonstrates made- grade was 2.4 levels behind age grade achievement relative to quate (2) standards; prog- reading. insufficient level intervention, pattern or a after
ress 1. Hawaii DOE Assessments strengths weaknesses achievement standards, or age, grade-level relative end of fourth Towards the indicatеs development, which year, Courtney’s grand- mother and grade disability.”2 See “specific education evalu- requested father Huefner, 300.309(a); su- see also C.F.R. At the meeting with Hawaii DOE. ation regulations prohibit at 10-11. pra meeting, Courtney’s grandfa- mother and requiring from school districts states requested ther that Hawaii DOE use discrepancy model” and use the “severe “response intervention model” to deter- compel to allow school districts states mine whether had a model.” to intervention “response learning disability.” Although 300.307(a)(1). 34 C.F.R. See in-depth agreed DOE to an achievement regula- Hawaii DOE did not conform its abilities, Hawaii evaluation until tions to federal law November “response to inter- DOE refused to use the fed- years than three after the 2009—more model.” vention regulations took These new eral effect. “in-depth Hawaii DOE’s achievement permit qualify a student to of a read- evaluation” consisted classroom discrep- education absent “severe by spe- ing report, assessment conducted and in- ancy” between actual аchievement for the cial education resource teacher ability.3 tellectual *6 district, as- school and a formal academic sessment, aby “psychological conducted Background B. Factual Both tests were at examiner.” conducted in grade From the until the second year. Courtney’s grade the end of fourth grade in beginning of the sixth According to the classroom re- assessment Courtney public elementary a attended reader, port, “Courtney struggles [is] a During period, this Hawaii. to able to decode at about the [third Courtney struggled reading with and con- grade level but comprehends fourth] sistently grade read level on both below grade third] to level.” [second about reading standardized and informal tests. Courtney need- report also noted through grade, fourth From second skills, fluency which improve ed to her oral Courtney placed the “at risk” cate- was at the to third level. grade second literacy a gory according to standardized The formal academic assessment indicated Despite daily reading practice test. Courtney’s perform- overall academic grandfather, group home with her small “Average ance was consistent with school, reading private intervention at Average” range, Below and that her weak- tutoring expense, at her mother’s she still reading flu- est skills related to and math By category. remained the “at risk” year, grade ency. the middle of her fourth regulations incorporate "response "specific learning if 2. These student has a (1) way possible inadequate as a intervention model” the student demonstrates identify eligible special child achievement or a severe between achievement, learning disability” "specific under the classi- and academic (2) progress pattern fication. insufficient or a strengths identify- and weaknesses relevant to "specific learning disability”. regulation provides ing a See Haw.
3. The amended Hawaii 8-60-41(a). that an evaluation team determine that CodeR. 7, 2006, Eligibility Meeting psychologist, perform censed clinical 2.June neuropsychological evaluation of Courtney. Courtney’s grade At the fourth end Dr. Murphy-Hazzard the evaluation team4 convened to evaluated year, Court- Courtney ney at the eligible beginning grade whether her fifth determine special considering year. After Dr. According Murphy-Haz- education. tests, IQan DOE’s assessments and test zard’s could Hawaii read at a grade level, had a third low-average indicated which fell in the low- IQ, average Hawaii range, comprehended DOE determined Court- at a level, ney grade was not education fourth fell in the aver- discrepancy” age no range. Murphy-Hazzard “severe existed Dr. IQ Courtney’s and her achieve- noted that Courtney struggled between with word recognition ment on standardized tests. and spelling. Based on these disputed observations, grandfather Murphy-Hazzard mother and Dr. diag- eligibility nosed Courtney dyslexia DOE’s determination re- and recom- that Hawaii DOE use the mended quested “re- immediate remediation and inten- tutoring.5 model. Hawaii sive sponse intervention” applied DOE never this alternative model 29, 2006, Eligibility 4.November eligi- determine Meeting ble education. final meeting oc- 3.Dr. Murphy-Hazzard’s quarter curred after the first of the fifth Neuropsychological grade on November 2006. At Evaluation meeting, team evaluation considered 2006, Courtney’s Murphy-Hazzard’s In June mother Dr. report and the re- quested another education evalua- sults of informal tests conducted (“Ms. Courtney, including Galindo”), Liza neuropsycho- tion Galindo Court- logical dyslexia ney’s grade evaluation and test. fifth teacher. These tests *7 agreed Courtney several Hawaii DOE additional showed read at the fourth assessments, particular grade these rejected grade. level at the of the fifth start requests. Courtney’s pediatrician Courtney’s reading significantly After did not Courtney improve be during quarter recommended evaluated the first of the possible disability by grade. a fifth Despite for neu- evidence that Court- mother, ropsychologist, Courtney’s ney dyslexia at had her and was not progressing expense, Peggy Murphy- adequately intervention, own hired Dr. regular with Ha- (“Dr. Murphy-Hazzard”), Hazzard a li- waii DOE again once determined that minimum, regulations require Murphy-Hazzard diagnosed At a 4. federal 5. Dr. Court- par- evaluation teams to include the child's ents, ney hyperactivity with "attention deficit disor- teacher, regular the child’s and at least receptive-expressive der" and “mixed lan- person qualified diagnostic one conduct guage psychologist, disorder.” The school children, psycholo- tests of a school such as examiner, psychological speech patholo- and gist, speech-language pathologist, or remedial gist disputed diagnoses some these at reading teacher. 34 C.F.R. 300.308. At eligibility meeting held on November Courtney’s meeting, following individuals Courtney’s eligibility special 2006. edu- participated: principal, psychological ex- diagnoses cation as result of these are not at aminer, psychologist, school student services appeal. issue in this coordinator, teacher, general resource several teachers, Courtney’s and mother grandfather. 6. Assets School edu- Courtney eligible was not academic achievement because her cation Courtney’s Courtney progress, Despite ability, her with commensurate was help still more because she so needed IQ.6 her measured According Ferguson, far Dr. behind. Courtney needed more intensive Dyslexia Tutoring Individualized reading education services to address her after month one Approximately fluency vocabulary In addi- deficits. spe- Courtney DOE denied Dr. dyslexia tutoring, tion to Fer- private education, in- Courtney took another cial Courtney guson enroll recommended reading Courtney performed test. formal School, dys- private school for Assets grade reading on fourth level very poorly incorporates children that gifted lexic and struggled to com- and even comprehension specialized instruction into its curriculum. level. Frus- grade at third prehend Courtney’s grade At the sixth beginning Courtney’s progress, lack trated with year, proceedings while administrative mother, family’s ex- Courtney’s Courtney’s pending, mother still (“Dr. Ferguson Dr. Kathy hired pense, and, Courtney public from withdrew dys- who to teach Ferguson”), is certified Courtney expense, at her own enrolled students, Courtney improve to help lexic Assets Schоol.7 reading her skills. tutoring Courtney Ferguson began Dr. Background C. Procedural Courtney’s January the middle Proceedings 1. Administrative her grade year. fifth Based on initial as- 15, 2007, On March in the middle of sessments, Dr. Ferguson concluded Courtney’s grade year, fifth “quite reading had severe grandfather requested mother and due ability” grade and that read three she process hearing, that Hawaii DOE alleging Ferguson provided behind. Dr. levels Courtney special denied edu- improperly weekly dyslexia reading tu- cation services. mother and significant toring, prog- which resulted grandfather Hearing asked the Officer to By grade year, fifth ress. end of her determine that reading proficien- Courtney “approached education under the learn- cy” according a standardized state test. requested ing disability” classification and Moreover, Courtney performed better on dyslexia tutoring intensive and remedia- tests, reading a fifth- informal tion, tutoring reimbursement for non- *8 percent grade-level passage with 95 accu- evaluations, compensatory DOE and edu- racy percent comprеhension and 50 at the Courtney’s cation for fourth and fifth beginning grade. sixth Before Dr. grade years. Courtney Ferguson’s tutoring, read produced expert grade passage percent Courtney’s mother four fourth August accuracy percent comprehension. hearings, witnesses at the held Courtney’s Courtney Murphy-Hazzard Dr. found that achievement and because 6. IQ signif- achievement were not higher by academic scores had a than indicated Hawaii IQ According icantly lower than her score. DOE's Hawaii evaluation. DOE, Courtney only low-average possessed $15,600, intelligence, Murphy-Hazzard's but as- Dr. 7. annual tuition for Assets $1,600-$1,700 Courtney Courtney possessed plus busing. showed that av- for also sessment Assets, Nevertheless, erage intelligence. no severe attended a summer school $1,600. Courtney’s approximately cost between existed special wit- if progress during 29-31 and December These education her Dr. Murphy-Hazzard, grade nesses included the fifth was attributable to the Court- psychologist performed clinical who dyslexia tutoring individualized she re- evaluation; ney’s neuropsychological Dr. Ferguson. ceived from tutoring Dr. Such dyslexic Ferguson, certified teacher of qualifies special education.8 According Courtney private who provided students Royston, question Dr. the critical Edelen-Smith, Dr. Patricia tutoring; Courtney “had started to make Special Depart- Education professor we by advances that see that she made Hawaii; University Dr. ment at grade year the end the fifth before she Dorwiek, a professor Disability Peter dyslexia started that [individualized tutor- University Studies of Hawaii. ing].” consistently that experts These testified presented Hawaii DOE testimony discrepancies Courtney’s between sub- Galindo, by Courtney’s grade Ms. fifth learning indicate that has a test scores she though teacher. Even Ms. Galindo’s infor- disability disability learning and that her mal that Courtney tests showed IQ Ferguson her Dr. depressed score. grade read below level at the start of the personal experience from her tu- testified fifth grade Courtney and that im- did not toring Courtney Courtney that had a se- prove by the time of her final eligibility Moreover, all reading disability. vere the meeting, Ms. Galindo testified that she did Courtney that experts testified needed Courtney not believe special needed edu- special general education to benefit from cation because prog- she observed some education and avoid academic failure. ress in the classroom. presented expert testimony DOE Hawaii 29, 2008, February On Offi- Hearing (“Dr. Royston Abigail Royston”), Dr. decision, cer issued his that concluding psychologist. Hawaii DOE school Dr. properly DOE determined Royston any did not attend ineligible Courtney special edu- special eligibility meetings, education cation under the disabili- unlike several of mother’s ex- ty” classification. Although Hearing witnesses, pert Royston Dr. had never met Courtney Officer found that suffered from Courtney. Royston Dr. criticized Dr. dyslexia, he determined that did neuropsychological Murphy-Hazzard’s not need education because no “se- grounds, evaluation on a number of discrepancy” vere existed between her ac- ultimately dysle- agreed Courtney had tual achievement and ability. Nevertheless, xia. аgreed she with Hawaii Hearing Officer also noted that Court- DOE’s conclusion that was not ney did not need Royston special education. Dr. suggested pro- the evidence that she was explained disability that a child with a nearly gressing proficien- and had reached qualify must education to need cy in reading. services. She surmised Hawaii DOE determined did not need *9 2. Court Proceedings District special pro- education she because was Hearing court the district affirmed “regular with gressing education interven- conceded, however, Courtney decision that ineli- Royston tion.” Dr. Officer’s Courtney eligible gible special that education under IDEA. should be deemed According Royston, general tutoring qualify 8. to Dr. education. provided by private tutoring center did not 1066 expertise of the adminis recognition the
First, district court determined the findings the must consider agency, decision was entitled trative Hearing the Officer’s respond Officer to the Hearing carefully the and endeavor to deference because evi- and the available materi hearing discussed of еach considered officer’s resolution Courtney’s dence, including testimony consideration, the After such al issue. Second, the district expert witnesses. reject find accept free to the court is law that Hawaii court held as a matter of Hellgate N.B. v. ings part or whole.” DOE use the “severe Dist., 1202, 1212 Elementary Sch. regulations. 2006 federal model” under the Cir.2008) (internal (9th quota and citations Third, court held that Court- the district omitted). tion marks did not demonstrate ney’s test results her intellec- discrepancy” between DISCUSSION
“severe be- ability and academic achievement tual Regulations Requir- I. Hawaii DOE’s achieve- cause her scores on standardized ing Exclusive Reliance on the “Se- higher IQ than her score. ment tests were Discrepancy vere Model” Violate district appeals mother the IDEA decision, arguing that primarily court’s regulations Federal cabin states’ discre- exclusively improperly Hawaii DOE relied eligibility tion to create education discrepancy model” to de- on the “severe First, ways. criteria in two states “[m]ust eligible for termine whethеr discrep- require not the severe under the learn- and ancy between intellectual agree. ing classification.9 We determining whether a achievement 34 specific learning disability.” child has a STANDARD OF REVIEW 300.307(a)(1). Second, § states C.F.R. court’s find We review district permit process the use of a based “[m]ust error, fact in for clear ings of IDEA cases scientific, re- response on the child’s conclusions of law de and we review its search-based intervention.” 34 C.F.R. Dist., B.S., novo. No. v. Seattle Sch. 300.307(a)(2). § These Cir.1996). (9th F.3d We review 13, 2006, and beginning effective October novo, Hearing Officer’s decision de controlling therefore were time [Hearing give “must deference to we meeting final No- on ... findings, particularly when Offieer]’s 29, 2006. vember careful[,] they thorough [and] are 300.307(a) held district court weight’ judgments of give must ‘due (internal discrepan- bar use of the “severe does not Id. citations policy.” educational omitted). holding This cy point. model.” misses the define quotation marks “We court, fed- Courtney’s mother concedes weight’ [t]he ‘due as follows: argues argues vio- also that Hawaii DOE Hawaii DOE IDEA, by failing duty. results lаted IDEA consider the all its child find Under shirked Murphy-Hazzard’s neuropsychological of Dr. obligation an that chil- states have to ensure argument fails because evaluation. This residing in their state dren disabilities team dis- record shows that evaluation identified, are located evaluated. See neuropsychological cussed the evaluation 1412(a)(3). U.S.C. length. requires IDEA a school district argument We this need reach parent-initiated to evaluation; the results of a consider eligibility ques- we reverse and remand require does not tion. adopt eval- trict to conclusions of such an *10 300.502(c)(1). § uation. See 34 C.F.R. (2007). use of the L.Rev. regulations permit eral “severe Unlike other model,” states, that discrepancy but contends Ha- Hawaii a state has educational discrep- waii not use the “severe DOE agency separate and does not have local model” sole determin- ancy as “the basis of Thus, school districts. Id. Hawaii DOE added). ing eligibility” (emphasis serves as agen- both the state educational cy, which creates statewide reg- educatiоn plain unambiguous lan ulations, district, and as the local school 300.307(a) § prohibits from guage of states provides educational services direct- requiring reliance on the “severe exclusive ly to students. Id. Because of these discrepancy requires model” and also circumstances, unique argues Hawaii DOE “response to allow of the states use to 300.307(a) § that Ac- apply. should regula intervention model.” The Hawaii DOE, cording to Hawaii application effect tions in at the time of 300.307(a) § would deprive Hawaii DOE of eligibility meeting final conflicted with right its choose to the best method for 300.307(a) by § conditioning eligibility for identifying students with learn- existence ing disability,” right every other school discrepancy” “severe between academic district enjoys. and intellectual with achievement “response permitting out to While Hawaii DOE is correct it model.” See Haw.Code R. intervention functions both a agency state entrusted 2009). § Nov. (repealed 8-56-26 Ha compliance with IDEA and as a direct regulations waii did not amend its DOE to provider services, of educаtional Hawaii conform with federal law until November it may DOE is incorrect shirk its years 2009—more than three after the responsibilities as a agen- state educational federal were effective. See just cy it provides educational Accordingly, §R. Haw.Code 8-60-41. directly services to students. Under the proeedurally Hawaii DOE violated IDEA regulations, amended no state educational by requiring discrepan use of the “severe agency may condition for special cy to model” determine whether child is education on existence of a “severe education under the discrepancy” between academic achieve- “specific learning disability” classification. ment ability, every and intellectual state “response must allow use of the to argues Hawaii DOE is not intervention” model.10 300.307(a)(1). 34 C.F.R. subject terms, § By its (2). 300.307(a)(1), § 300.307(a)(1) As a state educational applies states and not to Dinan, agency, required pro- DOE local school See John districts. mulgate Meaning regulations that are consistent State Constitutional Edu regulations. federal cation Clauses: Evidence the Consti See 20 U.S.C. from Debates, 1412(a)(ll). 1407(a), §§ tutional Convention 70 Alb. Hawaii DOE colleague dissenting agrees 10. Our that "34 renders it more like a local school district and, thus, 300.307(a)(1) prohibits prohibition regulation's inap- C.F.R. states from so, requiring plicable. any local severe districts use the dis- that were could If state crepancy Op. any effectively model.” Dis. at 1072. Our from local remove school dis- colleague regu- discretionary authority further final trict "[t]he *11 new, conforming regulations, these obligation by continuing Under fulfill this failed to required regulations under team find a student operate may an evaluation discrepancy model” and of use the “severe under education “response permit did learning disability” classification Accordingly, Hawaii intervention model.” if: IDEA.11 To proeedurally violated DOE (1) (A) The student does not achieve be detrimental to the hold otherwise would age for the student’s or adequately contrary to legisla- Hawaii and children of grade-level stan- State-approved meet 108-77, Rep. at 107 See H.R. tive intent. fоllowing in one or more of dards reliance on the “se- (noting that exclusive areas, provided ex- when in de- discrepancy model” result
vere appropriate and instruction periences layed incorrect of students or identification age State-approved or student’s IDEA); eligible for services under who are standards: grade-level Weber, 123-27. supra accord (i) expression; Oral (ii) Listening comprehension; II. Whether Was Erroneous- ly Ineligible Special Edu- Found (iii) expression; Written cation (iv) (including pho- Basic skill awareness, vo- phonics, of IDEA nemic procedural
A violation and/or deprives cabulary); it unless child harmless R.B. v. opportunity. an educational See (v) skills; Reading fluency Dist., Napa Valley Sch. Unified (vi) Reading comprehension; (9th Cir.2007). experi A child (vii) calculation; Mathematics op egregious ences an loss educational (viii) solving; problem Mathematics erroneously when she is denied portunity or eligibility education services. (B) The a severe student demonstrates (“It T.A., 129 S.Ct. at would be Cf. between actual achievemеnt provide particularly strange for Act a ability by and intellectual difference does, all remedy, agree when at least one and one-half standard devia- a child inadequate school district offers the areas in tions one or more of par education services but to leave (A); subparagraph egregious ents without in the more relief (2) (A) student not make suffi- does situation which the school district unrea progress age State- cient meet or sonably to services denies child access standards in one approved grade-level Thus, altogether.”). our next task is to in para- more of the identified or areas determine whether DOE’s unlawful (1)(A) graph using process when based regulations, require use of “se scientific, model,” an response resulted in on the student’s vere intervention; improper special de research-based or termination. (B) pattern The student exhibits strengths perform- and weaknesses eventually
Hawaii DOE amended the achievement, both, ance, relative applied Courtney’s unlawful State-apprоved grade-level stan- age, eligibility meeting to conform with federal 8-60-41(a)(l)-(2). dards, development, that §R. or intellectual law. Haw.Code Congress holding, certainly In we mean no disre- Hawaii DOE to the same standards so agencies spect dissenting colleague all states and state to our or to the has chosen for merely compliance. IDEA State of Hawaii. We hold Hawaii entrusted with
1069 determined, Therefore, be the court by group appro- the rele- district is the is a specific priate authority the identification of vant to assess and reach a con- disability, using appropriate as- learning Courtney’s eligibility clusion as to for spe- — sessments “specific cial learning education under the classification, a primarily fact- (a)(1) (2). §R. Unlike Haw.Code 8—60—41 — inquiry. Accordingly, based this court regu- new prior regulations, Hawaii’s these hereby remands this case back to the require discrepan- lations do “severe determine, and aca- cy” ability trict court to a preponder- between Moreover, evidence, demic achievеment. these new ance of the permit “response eligible would be for education un- Id. intervention model.” learning disability” der “specific classi- fication. regulations, Hawaii’s new Under be for
child will
deemed
III. Reimbursement
“specific learning
under the
dis
if
ability”
she
classification
satisfies two
Courtney’s mother
seeks
reim
First,
sets of criteria.
the child must dem
for
private
bursement
school
(1) inadequate
either
achieve
onstrate
Assets,
tuition
private
tutoring,
re
(2)
ment,
a severe
between
or
lated expenses.12
may award reim
We
Second,
ability.
achievement and
Id.
private
placement
bursement
school
if
(1)
child
either
insuffi
must demonstrate
unreasonably
school district
finds
child
(2) a
progress,
pattern
cient
of with
ineligible
disabilities
un
services
in
strengths
performance
or weaknesses
der IDEA and
private
place
school
with a
disabili
consistent
T.A.,
ment
See
appropriate.
129 S.Ct.
1415(i)(2)(C)(iii)
ty.”
pro
20
Id.
U.S.C.
at 2495-96. Reimbursement
is also avail
vides that a court should base its decision
tutoring
able for private
and related ser
to a child’s
respect
with
vices,
See,
such аs transportation.
e.g.,
preponderance
the evidence.
dis
Smith,
1519,
Union
Dist. v.
Sch.
trict
is the traditional forum
court
(9th Cir.1994) (holding
1528
reim
weighed,
facts are assessed and evidence is
transportation
bursement
reasonable
deeply
as it has the
to delve
into
private
placement
permitted
school
as a
and,
necessary,
factual records
where
con
expense);
related
v. Bd.
Trs.
W.G.
evidentiary hearings.
duct
Cooter
See
&
28,
Target Range Sch.
No.
960
Dist.
F.2d
384,
v.
Corp.,
Gell Hartmarx
496 U.S.
402-
(9th Cir.1992)
1479,
(awarding par
1487
(1990)
03,
2447, 110
110 S.Ct.
L.Ed.2d 359
private
ents
tutoring).
reimbursement
in the context of Rule
(noting,
“the
above,
As
discussed
district court
district
is better
than
court
situated
must determine whether Hawaii DOE er-
appeals
pertinent
court of
to marshal
denied
roneously
eligibility for
apply
fact-dependent
legal
facts and
the “specific
education under
learn-
standard”);
Bradford,
In re
112 B.R.
ing disability” classification.
remand
We
(9th Cir.1990) (citing
City
v.
Anderson
to the district court to determine whether
N.C.,
564, 574,
City,
Bessemer
U.S.
education,
Courtney’s privately procured
(1985))
105 S.Ct.
CONCLUSION ing Reliance on the “Se- Exclusive violated procedurally Hawaii DOE Discrepancy vere Did Not Model” Vi- require IDEA by applying IDEA olate discrep- exclusive reliance on the “severe only the nation ancy at final Hawaii is state the model” placed primary responsibility deprived that has the meeting. This violation Court- public on the state It ney significant itself. opportunity a educational eligibil- operate public through does not schools it resulted in an erroneous majority ig- RE- smaller local districts. The ity Accordingly, we determination. nores the that the Hawaii DOE is the affirming district court’s fact VERSE the order and it in- agency RE- local educational treats Hearing the Officer’s decision and supervising as if its role that of proceedings MAND for further to deter- stead (1) actual mine a the local school authorities. whether has is for ser- and nor regu- Neither the federal statute the IDEA, (2) vices whether under prevent any agen- lations local educational placement рrivate dyslexia Assets from mod- cy using discrepancy the severe (3) tutoring is appropriate, of a specific el to determine existence appropriate amount of reimbursement. Indeed, statute, learning disability. amended, explicitly way AND REMANDED. is worded REVERSED permit agen- reflects the intent local CLIFTON, dissenting: Judge, Circuit majority cy to decide for itself. As describes, 1060-61, regu- According majority, opinion to the there is federal country compelled formerly one school district in the entire lations the use of the deciding from for itself severe measure. In is forbidden discrepancy Congress requirement. to use the “severe eliminated that As whether 1414(b)(6)(A) amended, pro- model” in 20 U.S.C. determining whether student determining That specific learning disability. has vides that “when has ... a specific learning disability school in which either of child district not one judges majority agency live. It local educational shall not be into whether a quired where I live: the state of Hawaii. take consideration child has a severe between majority’s is not based on decision ability.” achievemеnt nor, me, I any particular animus toward sure, Notably, the statute not amended to by any antagonism am toward Nonetheless, say that forbid- I view the a local school district was state of Hawaii. Congress that measure. could to the discretion of local den to use school districts. 300.307(a)(2); intent, See 34 C.F.R. Paul Sec- if that was its provided have so unda, “At Best An Inexact Science": Del- Instead, Congress mat- left the did not. imiting Legal Specific Contours judgment. local district’s ter to the Learning Disability Eligibility Under history the 2004 legislative behind amend- (2007) 36 J.L. Educ. & IDEA intent clearly ments to IDEA indicated the (book review) (noting reg- that the federal local “specifically Congress allow[s] allow ulations local districts sub- agencies educational to continue to use the *14 choosing stantial latitude in between se- model.” H.R. 108- discrepancy Rep. See criteria). learning disability eligibility vere (2003). 204, 77, Sec. 107 DOE, though obviously The Hawaii an Congress for That intended the decision arm state government, of is the local edu- by to be made the local school district was agency cational for Hawaii. It would аpproach further its to demonstrated far make more sense for us treat to it to “response alternative intervention” way. IDEA defines “local education- The allows but not model. statute does authority al agency” “public as a legally of that require use model. See 20 U.S.C. constituted within a State for either ad- 1414(b)(6)(B) (“In § determining whether of, or ministrative control direction or to specific learning disability, a a a child has perform function public service ele- agency may process local educational use a mentary secondary schools or in schools responds if the child to determines city, county, township, or school district.” intervention”). scientific, research-based 1401(19)(A). 20 only U.S.C. Hawaii has regulations in Language proposed would DOE, one school district. to- completely have authorized states to forbid gether Education, with the state Board of agencies local educational from using decisions, responsible making policy is model, lan- severe but that functions, performing administrative response guage was deleted to concerns providing directly educational services to language that it stat- exceeded the of the students.1 (June 21, 70 Fed.Reg. ute. See 35864 According majority, to the the Hawaii 2005); Huefner, Dixie Snow The Final DOE, simply agency, is state
Regulations the Individuals with Dis- lacks the how to decide itself to Improvement abilities Education Act criteria eligibility determine under IDEA. (IDEA '01), Law Rep. Ed. 8-9 Every country other district in school (2007). The final regulations left authority, local has even districts with choice of whether to dis- use severe populations student that far Ha- exceed crepancy procedures model or alternative waii’s.2 course, possible, city govern-
1. It to is debate the merit There no town islands. are having single school district for the entire covering ments smaller areas. subject state. That has been discussed basis, Angeles In the Los Unified School recurring proposals Hawaii on 688,000 approximately District served K-12 break the state into local smaller school dis- City's Department New students. York of Ed- tricts have been enacted. The statewide provided ucation stu- 1.1 million approach district consistent with Hawaii's 180,- served governance generally. dents. Hawaii’s DOE about The division re- Angeles sponsibility authority in 000 students. See Los Unified School Hawaii is unusu- District, Facts,” http://www. ally government "Fingertip tilted toward state versus municipalities. only political teachinla.com/Research/faq_notebook/2009- Similarly, the gov- 2010/Al.pdf; county City Department are four New subdivisions Hawaii York ernments, Education, Us,” covering http://schools.nyc. each one or more entire "About from school effectively remove local contradicts majority’s interpretation discretionary authority choose plain text of intent and tricts legislative ma- regulations. The and federal statute severe C.F.R. right jority by pro- model or an alternative standard 300.307(a)(1) from states prohibits itself.” viding direct educational services to use the severe local districts quiring opinion, what? Majority n. 10. So But prohibition this discrepancy model. adopted system any If other state Hawaii’s states clearly intended to limit what district, single there of a statewide agencies educational may compel local would, course, no “local school be other local do, situation where typical in the any state exercise districts” within that than the state. are entities other agencies authority. But does that establish? what 108-77, 204, at 107 Rep. H.R. Sec. See system long be- Hawaii’s statewide existed (2003). state not limit how the It does fore the federal statute and unique criteria in the define in 2004 so it amended *15 only Hawaii— applicable to situation — obviously up set to evade those wasn’t of a capacity it in the acting is also when nobody seriously And can enactments. surely agency. Congress educational local any that abolish local suggest state would deny the local school did not intend to take for itself the school districts and authority in the authority Hawaii same public for responsibility entire other expressly recognized in all regulation to in order to simply evade the majority gives opinion The school districts. require to the of a severe be able use doing so. logical no reason for Congress very standard. responsi- DOE not “shirk its Hawaii did agency from clearly prohibit did not local agency,” as a educational as bilities state deciding use the severe claims, It majority opinion the the should have same standard. Hawaii “required” not that school districts has that all other freedom decide for itself supervision its use the severe dis- under country in the school districts do. Rather, simply it exer- crepancy measure. justification in the The second offered authority its under the IDEA cised majority opinion the same footnote of choose whether or not would itself possible. if That Con- emptier, even that’s As discrepancy standard.3 the severe an gress exception did not make Ha- such, the in at the regulations place not hearing surprise did waii is statute Courtney’s eligibility time of the IDEA. not procedurally regulation, logically, not violate read do re- The Ha- quire exception an Hawaii. justify majority opinion’s The effort Department of Education is the “local waii response to this dissent is its conclusion Hawaii; it is agency” educational not majority remarkably The unpersuasive. majority opinion some state overseer. Hawaii is suggests if the State of assuming its justifies by result un- agency” treated as “local educational majority regulation, could that result. The “any der the then state correctness of Department pealing regulations that called for use of gov/AboutUs/default.htm; Hawaii Us,” so, Education, doing Hawaii did http://doe.kl2.hi. measure. But in "About (last Aug. thereby visited its to feder- not "conform us/about/index.htm law,” by majority opinion, as al asserted 2011). judgment simply at 1061-62. It exercised its 1060-61, notes, determining to use as to what measure majority opinion 3. As the disabilities, learning away specific from existence of in 2009 Hawaii decided move itself, by discrepancy approach law authorized it do. the severe federal explain why specific Hawaii should cation opinion fails to under disability differently, inability 8-56-26(b), be and its category, treated Haw.Code R. were do emptiness so underscores its thorough and well-reasoned. district reasoning. court concluded that the evidence reсord his supported findings, agree. and I Erroneously II. Was Not The hearing officer did err in finding Ineligible Special Found Edu- did not demonstrate a dis- cation crepancy between her academic achieve- previous regulations Since the law- ment and intellectual ability sufficient to ful, it necessary should not be to consider specific learning constitute a disability. Courtney’s eligibility under the amended 8-56-26(b). Haw.Code R. The DOE Nevertheless, regulations. under either Courtney’s IQ using measured the Wech- version, hearing officer had sufficient sler Intelligence Scale for Children— basis to conclude that did not Fourth Edition. IQ full-scale specific learning disability.4 demonstrate inwas the low-average must accord to the We deference hear However, range. academic assessments they ing findings officer’s when are “thor May conducted the DOE in 2006 indi- Dist, ough and careful.” Seattle Sch. No. cated that her skills were in the B.S., (9th Cir.1996). 1 v. 1493, 1499 average range. On the Woodcock-John- We also accord to the policy deference (“WJ-III”), son III Tests Achievement *16 a school decisions of district when it is her reading” “reading “basic and compre- acting within the boundaries of federal and hension” average, scores were and her Smith, Sch. v. Union Dist state law. “broad reading” score was “low average.” (9th Cir.2004). F.3d It is not On the Kaufman Test of Educational the role of court to this substitute its “own (“KTEA- Achievement, Second Edition policy notions of sound educational II”), “reading” “reading her and fluency” those of the which they school authorities scores were rated as The average. DOE’s review.” See Wilson v. Marana Unified psychological examiner concluded that (9th Sch. 735 F.2d Cir. Dist. Courtney’s “sight vocabulary, phonics, 1984). Unfortunately, majority opin analysis skills, reading structural and com- ion wants to reach different result so it prehension skills were all measured within exactly supposed does what we are not average range age” her on both do. tests. Her scores were equivalent to if not The hearing officer laid out the factual higher IQ. than her carefully basis for his decision and consid- clearly Courtney struggled with reading, testimony reports. ered all of the and dyslexia. and she of signs demonstrated discussed, detail, officer instances where But according to psychologist school Dr. an testimony expert of or teacher con- Abigail Royston, suggested the evidence findings Courtney’s tradicted the expert dyslexia that her was mild. hearings witnesses. His that Courtney conclusions officer, noting did not substantial evidence of special show a need for education services, 8-56-15, Courtney’s adequate reading § and Haw.Code performance, R. and qualify she did not properly rejected edu- conclusions Court- (2) regulations, 4. Under the progress, pattern amended the child insufficient or (1) inadequate strengths must performance demonstrate either or weaknesses in con- achievement, (2) "specific learning disability.” severe be- sistent with a (1) 8-60-4l(a)(l)-(2). ability; tween achievement and and either See Haw.Code R. assessment, Courtney was reading that her difficulties state’s ney’s expert witnesses enough to war- her near-equivalent severe at a reading reading with level and The WJ-III rant education. By grade year, according her sixth peers. scores, KTEA-II and observations Galindo, im- had continued to Courtney’s teach- psychologists and reading showing and increased prove ers, near-pro- indicated fluency. comprehension and year. fifth-grade her reading ficient in compel the conclu- The record does Fernan- Psychological Cigdem examiner Courtney’s academic achievement sion administered dez, reading assess- who was incommensurate her tests, demon- ment noted abilities, performance was reading that her read ability high-frequency “the strated words, words, substantially average, she or that sound out unfamiliar below while comprehend connected discourse ade- required special perform Af- reading age appropriate at an level.” R. quately school. Haw.Code 8-56- 9, 2006 evaluation ter November (a)(1) (2). 15; § deter- 8—60—41 The DOE — Courtney’s hearing, language speech, Courtney’s mined that difficulties with abilities, speech Mendes pathologist Hanna through could reading be addressed assis- language concluded that overall setting. in the regular tаnce classroom average and that range skills were in the fifth Courtney’s improvement during her language “adequate has and articula- she grade year and sixth attest to her edu- regular tion abilities to succeed progress make without edu- on a cation classroom.” score hearing cation. We must defer in the state standardized test giv- that a appropriate officer’s conclusion spring of 2007 was which was on did en child not demonstrate “approaches end upper proficiency” of the Dist., special education. See Union Sch. aver- range. Her score was similar to the here. 1524. We should do so age graders score of fifth in her school *17 graders fifth statewide. III. Conclusion incorrectly majority suggests strong performance on the judgment the district court reading 2007 state test was the direct It is wrong should be affirmed. weekly tutoring of her reading sult majority to its judgment substitute Ferguson. reality, Courtney In Dr. officer. It even hearing that of showing progress before she substantial wrong majority Ha- more for the to treat began tutoring Ferguson her with Dr. state, waii as a unable to second-class
January reading 2007. Burns and Roe every make for itself a decision that other August conducted in 2006 and assessments country permitted school district in the the beginning November of Court- I to make. dissent. ney’s year, fifth that she grade indicated grade fourth level. Ac- at the cording teacher Liza Galin-
do, Courtney improve- showed substantial ment the November 2006 assessment. test, reread On that she “went back and cor- understanding and went back and substitutions,” strategies rected Gal- word By spring indo had before. not seen year, according of that academic notes to choose left lations the choice whether use the whether to use the severe model pro- by providing severe model or direct alternative an alternative model itself, cedures to the of local school discretion educational services for whatever rea- But, Moreover, Op. according tricts.” Dis. at 1071. son that chose do so. state dissent, Congress unique presumably situation— aware Hawaii DOE’s of Hawaii's provider unique exception aas direct of educational services— situation and made no for it.