Mr. and Mrs. DOE, Plaintiffs, Appellants, v. CAPE ELIZABETH SCHOOL DISTRICT, Defendant, Appellee.
No. 15-1155
United States Court of Appeals, First Circuit.
August 5, 2016
Section 924(c)(1)(A) clearly says that a conviction for possessing a firearm “during and in relation to any crime of violence” triggers a 60-month mandatory minimum prison sentence, while a conviction for brandishing a firearm triggers an 84-month mandatory minimum prison term. See
Wrap Up
For the reasons recorded above, we affirm Garay‘s sentence on the carjacking count, vacate his sentence on the firearm count, and remand for resentencing.5
luminating sentence, he hints that the judge may have created a sentencing disparity between him and “other participants in the offense“—the suggestion is waived by “perfunctory” treatment. United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
Eric R. Herlan, Portland, ME, with whom Erin R. Feltes, Manchester, NH, and Drummond Woodsum & MacMahon were on brief, for appellee.
Amy Phalon and Gibbons Stevens Law Office on brief for amici curiae International Dyslexia Association et al.
Ellen Saideman, Fort Lauderdale, FL, Law Office of Ellen Saideman, Selene Almazan-Altobelli, and Council of Parent Attorneys and Advocates on brief for amicus curiae Council of Parent Attorneys and Advocates.
Before BARRON, SELYA, and LIPEZ, Circuit Judges.
LIPEZ, Circuit Judge.
This case raises an important issue regarding eligibility for special education under the Individuals with Disabilities Education Act (“IDEA“). We are asked, in essence, to decide whether a child with a strong academic record may still be found to have a learning disability and a need for special education, thereby entitling her to special education and related services.
Appellants Mr. and Mrs. Doe (“the Does“) appeal the decision of the district court, which affirmed the administrative hearing officer‘s determination that their child, Jane Doe (“Jane“), is no longer eligible to receive special education under the IDEA despite allegedly suffering from a reading fluency deficit. The Does argue that the district court erred as a matter of law in its eligibility inquiry because (i) the court considered Jane‘s overall academic achievement, when her deficiency in reading fluency is sufficient by itself to support eligibility, and (ii) the district court did not make an independent judgment as to Jane‘s reading fluency deficit, instead deferring to the hearing officer‘s factual findings, while summarily dismissing the additional evidence that the Does submitted.
Having carefully considered the claims, we conclude that, while Jane‘s overall academic performance could potentially be relevant in determining whether she has a reading fluency deficit, the district court erred in rеlying on such evidence without regard to how it reflects her reading fluency skills. Additionally, we find that the court failed to make an independent judgment as to the additional evidence submitted by the Does and afforded excessive deference to the hearing officer‘s determinations in weighing the relevant reading fluency measures. Hence, we vacate and remand the case.
We clarify, however, that even if the district court finds on remand that Jane has a reading fluency deficit, she would not be eligible for special education unless she also “needs” special education. In assessing that need, grades and standardized test results are not categorically barred from consideration any more than they are
I.
The factual and procedural history of this case is informed by the statutory framework governing the eligibility inquiry and judicial review of administrative decisions. We thus preface our discussion of the facts with a brief overview of the relevant statutory regime.
A. Legal Background
The IDEA was enacted to provide “free appropriate public education” to children with disabilities.
(i) with intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to in this chapter as “emotional disturbance“), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and
(ii) who, by reason thereof, needs special education and related services.
Accordingly, eligibility determinations proceed in two steps. The first prong determines the existence of a disorder1—here, a specific learning disability (“SLD“).
Regulations promulgated by the U.S. Department of Education (“U.S. DOE“) provide further guidance on how to identify a child with an SLD. An SLD is “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 listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.”
(1) The child does not achieve adequately for the child‘s age or [] meet State-approved grade-level standards in one or more of the following areas, when provided with learning experiences аnd instruction appropriate for the child‘s age or State-approved grade-level standards:
(i) Oral expression.
(ii) Listening comprehension.
(iii) Written expression.
(iv) Basic reading skill.
(v) Reading fluency skills.2
(vi) Reading comprehension.
(vii) Mathematics calculation.
(viii) Mathematics problem solving.
[and]
(2)(i) The child does not make sufficient progress to meet age or State-approved grade-level standards in one or more of the areas identified in paragraph (a)(1) of this section when using a process based on the child‘s response to scientific, research-based intervention; or
(ii) The child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development, that is determined ... to be relevant to the identification of a specific learning disability, using appropriate assessments, consistent with §§ 300.304 and 300.305.
Once a child is determined to have an SLD, the eligibility inquiry asks whether the child also “needs special education and related services” “by reason [of]” her disability.
B. Factual Background4
As early as preschool, Jane struggled with reading and learning to talk. When she was in second grade in the Cape Elizabeth School District (“school district“), Jane‘s Individualized Education Program team (“IEP team“)—which included her parents and teachers (among other individuals), see
In March 2012, when Jane was in seventh grade, her IEP team decided to place her on consult status for the remainder of the year, based on the fact that she was achieving well in school, including in the area of reading fluency. Although the Does did not object, they expressed a concern that Jane might regress without specialized instruction. To address this concern, the IEP team agreed to administer monthly reading fluency probes5 to monitor Jane‘s fluency skills. Since March 2012, Jane has not received any special education.
In January 2013, Janе‘s IEP team decided that she no longer qualified as a student with an SLD because, among other reasons, she was achieving adequately in all areas, including reading fluency, even without special education, and hence did not have a cognizable learning disability under federal and state laws. Among the factors considered by the IEP team was Jane‘s excellent academic record, as demonstrated by her straight-A grades and her performance on generalized state standardized tests, such as NECAP (New England Common Assessment Program) and NWEA (Northwest Evaluation Association) exams. The IEP team also took into account the results of tests that were administered specifically to measure Jane‘s reading skills, such as TOWRE-2 (Test of Word Reading Efficiency), WMRT-III (Woodcock Reading Mastery Tests), GORT-5 (Gray Oral Reading Test), and TOC (Test of Orthographic Competence). Jane scored above average or in the average range in almost all the areas in which she was tested, including reading fluency. The team also considered Jane‘s social and behavioral life in school, as observed by her teachers, school psychologist, parents, and herself.
The Does disagreed with the school‘s eligibility decision and sought a third-party evaluation from Victoria Papageorge, an educational consultant, and Dr. Richard Doiron, a neuropsychologist. Papageorge administered many of the tests that overlapped with those already considered by the IEP team, such as TOWRE-2, WRMT-III, and GORT-5. While Jane‘s scores on WRMT-III and GORT-5 were comparable to those achieved when she was tested by the school, she scored considerably lower on TOWRE-2 when it was administered by Papageorge. Papageorge also administered an additional reading test, the Symbolic Imagery Test, on which Jane scored very low. Doiron administered, among others, the Nelson Denny Test, which counts the number of words read in a given time period, and Jane scored low on the reading rate component of that test. Papageorge and Doiron wrote a report based on the test results.
In May 2013, Jane‘s IEP team reconvened to consider Jane‘s eligibility in light of the third-party evaluation. The IEP team again determined that Jane was not eligible to receive special education because she was performing adequately in all areas, thus indicating the absence of an SLD under federal and state laws.
C. Procedural Background
The IDEA provides for administrative and judicial review of the IEP team‘s and the hearing officer‘s decisions, respectively, regarding a child‘s eligibility for special education. Under the statute, parents who
After Jane‘s IEP team decided that she no longer qualified as a student with an SLD, the Does sought administrative review of the school‘s decision. In making the eligibility determinations, the hearing officer considered a broad base of measures, including Jane‘s excellent grades, standardized test results, classroom performance, and general school life, based on input from her teachers and parents, as well as the results of tests that specifically measured her reading fluency skills. The hearing officer then affirmed the school‘s decision to deny eligibility because Jane was achieving adequately in all areas and hence did not have an SLD. The hearing officer also found that Jane did not need special education to benefit from the school program.
The Does then brought this civil action. Pursuant to
II.
The Does contend that the district court erred in considering Jane‘s overall academic achievement because a deficiency in reading fluency alone can support eligibility under the IDEA. Additionally, a reading fluency deficit, the Does argue, can only be measured by specific reading fluency assessments, such as TOWRE-2, WRMT-III, GORT-5, and the reading fluency probes, and not by a child‘s overall academic performance, such as Jane‘s school grades and NECAP and NWEA scores. They argue that these reading fluency measures indicate that Jane has a reading fluency deficit, and that she needs special education to address it.
We conduct de novo review for questions of law addressed by the district court and clear error review for the court‘s findings of facts. Where the case raises mixed questions of law and fact, we employ a “degree-of-deference continuum,” providing “non-deferential plenary review for law-dominated questions” and “deferential review for fact-dominated questions.” Mr. I. ex rel. L.I. v. Me. Sch. Admin. Dist. No. 55, 480 F.3d 1, 10 (1st Cir. 2007) (citation omitted).
A. First Prong of the Eligibility Inquiry
The district court considered Jane‘s overall academic achievement under the first prong of the eligibility determinations, i.e., in identifying an SLD.6 A child has an SLD if he or she “does not achieve adequately for the child‘s age” or “meet State-approved grade-level standards in one or more of the following areas.”
The conjunctive phrase, “in one or more ... areas,” combined with the fact that “reading fluency” is listed as a separate category from two other reading-related skills, makes clear that a reading fluency deficit is sufficient to support a cognizable SLD.
First, the agency regulations uniformly indicate that the eligibility inquiry, generally, must take into account a broad base of measures, including a child‘s academic performance.7 The agency has stat-
The regulations also indicate the relevance of a child‘s overall academic performance to an SLD determination. The agency has noted, for instance, that “[f]or a child suspected of having [an SLD], ... the documentation of the determination of eligibility ... must contain a statement of ... [t]he basis for making the determination, including an assurance that the determination has been made in accordance with § 300.306(c)(1),”
We find the reference to “the child‘s academic performance” notable. In a prior version of a related regulation, the agency stated that the “evaluation” procedures used to determine whether a child has a disability are limited to “procedures used selectively with an individual child and do[] not include basic tests administered to or procedures used with all children in a school, grade, or class.”
We add two important qualifications. First, because the text of
The capacious interpretation of
With the scope of the consideration of Jane‘s academic record narrowed to those components reflective of her reading fluency ability, we address the second qualification—namely, the weight that may be accorded to generalized academic performance, particularly in a situation, like here, where academic record points in a different direction from the results of specific reading fluency assessments. Jane‘s academic record is indisputably excellent: she has received straight-A grades, with or without special education, аnd has performed well on state standardized exams. On the other hand, Jane has received average-range or arguably below-average scores on an array of tests that were ad-
As a starting point, the agency has made clear that “[n]o assessment, in isolation, is sufficient to indicate that a child has an SLD” based on any of the listed areas in
Thus, as a preliminary matter, we determine that, much as no single assessment or measure could support a finding of a reading fluency deficit, no single assessment or measure may undermine a finding of a reading fluency deficit where other measures could support such a finding. See generally
Based on the foregoing analysis, we conclude that the district court erred in relying on Jane‘s overall academic achievements without assessing the relevance of such achievements to her reading fluency skills. Accordingly, we vacate and remand the case. On remand, the court should first determine whether Jane‘s generalized academic measures, such as school grades and NECAP and NWEA scores, may serve as fair proxies of her reading fluency ability. If the court answers that question in the affirmative, it should then weigh all relevant factors and decide whether those components of Jane‘s academic performance that reflect her reading fluency skills could counteract the (relаtively) negative results of specific reading fluency assessments.
B. Judicial Review Standard and Additional Evidence
We also address here related errors the district court committed in conducting the first prong inquiry. The Does argue that the district court failed to make an independent judgment as to Jane‘s reading fluency deficit because the court deferred to the hearing officer‘s factual findings on reading fluency assessments, while summarily dismissing the post-hearing evidence that they submitted. Specifically, the Does contend that the district court failed to consider Jane‘s scores on GORT-5, the Nelson Denny Test, and the reading fluency probes as relevant demonstrations of her reading fluency deficit. They also claim that these errors stemmed in part from the district court‘s mistaken understanding of the action as an appeal of an administra-
We reject the argument that the court‘s references to an appeal suggest any analytical confusion. See Kirkpatrick v. Lenoir Cty. Bd. of Educ., 216 F.3d 380, 385 & n.4 (4th Cir. 2000) (acknowledging that, “[o]ut of convenience and expediency, many courts use language suggesting that they are affirming or reversing the decision of the state administrative agency“); see also Sebastian M. v. King Philip Reg‘l Sch. Dist., 685 F.3d 79, 84 (1st Cir. 2012) (“[A]n appeal of the administrative hearing officer‘s final decision may be taken to either a federal or state court of competent jurisdiction.“); D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 564 (3d Cir. 2010) (referring to judicial rеview of a hearing officer‘s decision as an “appeal“).
More problematic, however, is the district court‘s treatment of the additional evidence and the deference it extended to the hearing officer‘s factual findings. Judicial review of administrative decisions in IDEA cases “requires a more critical appraisal than clear-error review,” but “nevertheless, falls well short of complete de novo review.” Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1st Cir. 1993). In the course of this “involved oversight,” S. Kingstown Sch. Comm. v. Joanna S. ex rel. P.J.S., 773 F.3d 344, 349 (1st Cir. 2014) (citation omitted), a court must make “bounded, independent decisions—bounded by the administrative record and additional evidence, and independent by virtue of being based on a preponderance of the evidence before the court,” Town of Burlington v. Dep‘t of Educ. for Commonwealth of Mass., 736 F.2d 773, 791 (1st Cir. 1984).
Here, the district court accorded excessive deference to the hearing officer‘s determination that Jane did not have a reading fluency deficit. One illustration of such deference is the court‘s dismissal of the significance of GORT-5 (as administered by Papageorge) and the Nelson Denny Test. The district court disregarded those measures because the hearing officer “explicitly gave less weight to the results from Papageorge‘s evaluation” based on the understanding that “Papageorge ‘is not licensed or certified to diagnose processing disorders or to evaluate them.‘” In a footnote to this sentence, the district court added that the hearing officer “also gave less weight to Doiron‘s testimony after finding that he undermined his own credibility by withholding [certain test results] from the IEP team.”
This reasoning suggests a mistaken understanding of the record. To the extent that the district court attributed both GORT-5 and the Nelson Denny Test to Papageorge‘s evaluation, Papageorge administered only GORT-5, not the Nelson Denny Test. Moreover, GORT-5 was not the test with regard to which the hearing officer found Papageorge to be “not licensed or certified.” Instead, the hearing officer discounted the probative value of GORT-5 because it was a more difficult test than GORT-4 (on which Jane performed better), and it was unclear whether Jane‘s GORT-5 score was “an indication of a decline in reading skills or simply the product of a harder test.” As to the Nelson Denny Test, which was administered by Doiron, it is not clear from the record whether the district court addressed its relevance at all, since the reference to the credibility of Doiron in the footnote does not appear to concern the Nelson Denny Test.
Hence, the district court erred in disregarding GORT-5 and the Nelson Denny Test, based on a mistaken understanding of the record, without making any judgment as to the relevance of those measures
In purporting to defer to the hearing officer‘s factual determinations, the district court also failed to properly consider the additional evidence submitted by the Does. The IDEA instructs the courts to “receive the records of the administrative proceedings,” “hear additional evidence at the request of a party,” and grant relief “as the court determines is appropriate” based on a preponderance of the evidence.
The district court declined to consider the additional evidence. The court reasoned that it was not “necessary” for the court to “resolve the question of which reading fluency probes are more accurate” because the old reading fluency probes received only “scant consideration” from the hearing officer and the IEP team. The district court went on to note, “Given that the IEP Team did not consider this measure, and the Hearing Officer gave no more than glancing consideration to it, the Does have not established that fluency probes improperly led Cape Elizabeth to determine that Jane does not qualify for special education services under 300.309(a) and [state law].”
That is an incorrect approach to the consideration of the additional evidence. The fact that the hearing officer “gave no more than a glancing consideration” to the reading fluency probes does not preclude the district court from considering such evidence, whether it is the old reading fluency probes or the new ones sub-
We provide one further instruction on the appropriate judicial review standard in considering the additional evidence. We have previously held that, in reviewing the hearing officer‘s determination in IDEA cases, “the persuasiveness of a particular administrative finding, or the lack thereof, is likely to tell the tale.” Lenn, 998 F.2d at 1087; see M.H. & E.K. ex rel. P.H. v. N.Y.C. Dep‘t of Educ., 685 F.3d 217, 244 (2d Cir. 2012) (noting that persuasiveness of an administrative finding “will hinge on the kinds of considerations that normally determine whether any particular judgment is persuasive, for example whether the decision being reviewed is well-reasoned, and whether it was based on substantially greater familiarity with the evidence and the witnesses than the reviewing court“). Hence, where the post-hearing evidence is credible so as to question the persuasiveness of the hearing officer‘s decision, see, e.g., Schaffer v. Weast, 554 F.3d 470, 475 (4th Cir. 2009), a court should extend less deference to the hearing officer‘s determinations. That is to say, “the district court should afford more deference whеn its review is based entirely on the same evidence as that before the [hearing officer] than when the district court has before it additional evidence that was not considered by the [officer].” M.H., 685 F.3d at 244; see Alex R. ex rel. Beth R. v. Forrestville Valley Cmty. Unit Sch. Dist. No. 221, 375 F.3d 603, 612 (7th Cir. 2004) (“The more that the district court relies on new evidence, ... the less it should defer to the administrative decision: ‘[j]udicial review is more searching the greater the amount (weighted by significance) of the evidence that the court has but the agency did not have.‘” (alteration in original) (quoting Sch. Dist. of Wis. Dells v. Z.S. ex rel. Littlegeorge, 295 F.3d 671, 675 (7th Cir. 2002))).
Accordingly, on remand, the district court—if it is assured of the credibility or persuasiveness of the additional evidence on reading fluency—should make an independent judgment, with less deference to the hearing officer, about whether Jane has a reading fluency deficit in light of the additional evidence and the entire administrative record. The fact that the old reading fluency probes received “no more than glancing consideration” by the hearing officer should present no obstacle to the court‘s consideration of the old or new fluency probes as a relevant measure in discerning a reading fluency deficit.
C. Second Prong of the Eligibility Inquiry
Because the district court found that Jane does not have an SLD, it did not address the second prong.12 The Does sug-
The second prong of the “child with a disability” definition provides that a child with an SLD must, “by reason thereof,” “need[ ]” special education and related services to be eligible.
My colleagues do not wish to resolve these competing arguments, having concluded that this appeal, in its present posture, can be resolved without addressing the need inquiry.13 Moreover, they are troubled by the scant attention that the parties gave to the need inquiry in the district court. Nevertheless, the panel agrees on the following two points. First, insofar as Jane‘s academic performance is relevant under the first prong, consideration of her grades and standardized test results is not categorically barred under the need inquiry any more than it is cate-
ing found—as did the school—that Jane did not have a reading fluency deficit.
gorically barred under the first prong inquiry. Indeed, when qualified this way, Jane‘s overall academic performance is relevant to the need assessment under either of the competing constructions proposed by the parties. Second, we emphasize that the need assessment—irrespective of its purpose—requires at a minimum that a child with a disorder “need[]” special education.
With this guidance, we leave it to the district court to decide, if it becomes relevant, the nature of the need inquiry and whether Jane has shown a need for special education.
III.
We briefly address the issues regarding the state eligibility standards. Much of the analyses involving Jane‘s reading fluency skills by the IEP team, the hearing officer, and the district court concerned whether Jane‘s performance on reading fluency measures demonstrated that she has “a disorder in one or more of the basic psychological processes,” meaning that she exhibits “scores 1.5 or more standard deviations below the mean for the child‘s age on tests in one area of psychological processing, or 1 or more standard deviations below the mean in two or more areas of psychological processing.” Maine Unified Special Education Regulation (“MUSER“) § VII.2.L(1), (2)(a)(ii) (hereinafter, “processing disorder requirement“). Indeed, in addition to finding that Jane does not meet the federal eligibility standard, the district court appears to have adopted the hearing
As relevant here, the Does argue that whether MUSER‘s processing disorder requirement is preempted under federal law is not part of this appeal. The school district does not disagree, stating only that, if we were to address the validity of the processing disorder requirement, we should uphold it. Additionally, as an alternative basis for affirming the district court‘s decision, the school district invokes a separate MUSER provision governing the need inquiry. That provision states that a child with a disorder “needs” special education “when, because of the disability, the child can neither progress effectively in a regular education program nor receive reasonable benefit from such a program in spite of other services available to the child.” MUSER § VII.2. In response, the Does argue—though only briеfly in their reply brief—that MUSER‘s “need” provision, much like its processing disorder requirement, is inconsistent with federal law.
We do not address here whether Jane has a “psychological processing disorder” under MUSER in light of the uncertainty over the validity of this requirement, nor do we decide the legality of MUSER‘s “need” provision. Given that neither the hearing officer nor the district court addressed the preemption issue (and that the briefing on this question is limited), we deem it prudent to allow the district court to make that determination, if needed, with the aid of further briefing provided by the parties. Such determination may well become necessary, for instance, if the court finds on remand that Jane meets the federal eligibility standards, but not MUSER‘s “processing disorder” or “need” standards.
IV.
In summary, we vacate and remand this case with the following instructions. On remand, the district court should first decide whether Jane has a reading fluency deficit. In making this determination, the court may consider Jane‘s overall academic performance, insofar as her generalized academic record is shown to be a fair indicator of her reading fluency deficit, as well as the results of specific reading fluency assessments. The court should also exercise independent judgment, with the appropriate level of deference to the hearing officer as set forth herein, in resolving issues concerning Jane‘s alleged reading fluency deficit.
If the district court finds that Jane has a reading fluency deficit, it should then determine how the need inquiry should be interpreted and whether Jane meets the need standard under the IDEA. See
Additionally, if the court decides that Jane meets the federal eligibility standards but not the state standards, the court may have to address the validity of MUSER‘s processing disorder requirement and “need” provision.
Finally, if the district court determines that it would benefit from having the hearing officer make additional findings on is-
Costs are awarded to appellants.
So ordered.
LIPEZ, Circuit Judge, concurring.
My colleagues believe that the opinion to this point resolves the issues presented in this appeal and that going further to address the need prong of the eligibility inquiry would be unnecessary. I believe, however, that we should address that difficult legal issue to provide further guidance to the district court on remand. It has been raised by the parties, however imperfectly. That guidance could be important for the disposition of this case and future disputes about eligibility for special education. There is, moreover, a dearth of First Circuit law on the nature of the need inquiry. We should not leave the district court at sea on such an important issue. Hence, I write a separate concurrence to express my views on the subject.
As the panel opinion explains, the dispute between the parties concerning the need inquiry arises from the ambiguity in the text of the need provision. Section
“It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Davis v. Mich. Dep‘t of Treasury, 489 U.S. 803, 809 (1989). In Board of Education v. Rowley, 458 U.S. 176 (1982), the Supreme Court addressed what a child with a disability (i.e., a child who has satisfied the two-pronged eligibility requirements) is entitled to as part of his or her special education. I find Rowley instructive in understanding the statutory framework and hence rely on it for guidance in interpreting the need inquiry.
Amy Rowley was a deaf student who had minimal residual hearing. See id. at 184. After she was determined to be eligible for special education, an IEP was developed which provided for, among other things, a hearing aid, instruction from a tutor for the deaf, and separate instruction from a speech therapist. Id. Amy‘s parents, the Rowleys, agreed with parts of the IEP, but insisted that Amy be provided a sign-language interpreter in all her academic classes “in lieu of the assistance proposed in other parts of the IEP.” Id. The school refused, having determined that Amy “did not need ... an interpreter” based on, inter alia, “testimony from Amy‘s teacher and other persons familiar with her academic and social progress.” Id. at 184-85. An independent examiner agreed, noting that “an interpreter was not necessary because [the child] was achieving educationally, academically, and socially without such assistance.” Id. at 185 (internal quotation marks omitted).
The Rowleys challenged the school‘s decision in federal court. Id. The district court observed that “Amy is a remarkably well-adjusted child who interacts and communicates well with her classmates and has developed an extraordinary rapport
The Supreme Court rejected that precise formulation for assessing the sufficiency of an IEP. Recognizing that the IDEA does not prescribe any substantive standard for determining the level of special education that must be afforded to eligible children, the Court nonetheless emphasized that the phrase “free appropriate public education” should be given meaning.14 See id. at 187-89; see also
Rowley‘s pronouncements on the purpose of special education reject a construction of the need inquiry that is not similarly anchored in the “educational benefits” or “educational progress” that a child derives from school. Id. at 202, 203.
A court must interpret a statute “as a symmetrical and coherent regulatory scheme,” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Gustafson v. Alloyd Co., 513 U.S. 561, 569 (1995)), and “fit, if possible, all parts into an harmonious whole,” id. (quoting FTC v. Mandel Bros., Inc., 359 U.S. 385, 389 (1959)). Reading the eligibility and sufficiency-of-an-IEP determinations as “parts [of] an harmonious whole,” id., I reject the Does’ interpretation оf the need inquiry, to the extent that it focuses solely on remediating the underlying disability, without regard to the “educational progress” a child is making in school. Nonetheless, I recognize that remediation of the underlying disability is also relevant in assessing the need. After all, the statute specifies that a child must “need[ ]” special education “by reason [of]” the disorder as identified under the first prong,
Having so interpreted the need inquiry, the relevance of a child‘s academic achievements becomes clear. The Rowley Court noted that “[t]he grading and advancement system ... constitutes an important factor” in determining whether the education provided to eligible children is “appropriate.” 458 U.S. at 203; see also
I add an important coda to this conclusion, however. To say that the educational benefits that a child receives in school is an “important factor” in measuring his or her need, Rowley, 458 U.S. at 203, does not mean that a merely adequate academic performance must compel a finding of ineligibility, regardless of the child‘s potential. Indeed, in the absence of a statutory or regulatory directive, I am wary of invoking an absolute standard of educational performance, the satisfaction of which would automatically disqualify a child from eligibility under the need prong. Rowley held only that special education need not maximize a child‘s potential, not that special education is immaterial to helping the child better realize his or her potential.16 458 U.S. at 198, 200. Additionally, the Rowley Court itself rejected an approach that would deem every child with a disability “who is advancing from grade to grade in a regular public
In a similar vein, I do not confine “educational progress” or “educational benefits” to strictly academic performance. In Rowley, the district court had found that Amy was “a remarkably well-adjusted child who interact[ed] and communicate[d] well with her classmates and ha[d] developed an extraordinary rapport with her teachers,” id. at 185 (internal quotation marks omitted), and hence there was no need for the Court to discuss the relevance of a child‘s social or behavioral performance to the sufficiency-of-an-IEP inquiry. One can imagine a scenario, however, in which a child with a disorder is struggling with a social or behavioral problem that is traceable to the disability, and that interferes with the child‘s educational experience in school. Under such circumstances, I believe that an assessment of “educational benefits” or “educational progress” under the need prong must include, in addition to academic performance, broader aspects of the child‘s school experience. That is to say, even a child, like Jane, who is performing well above average according to grades and standardized test results, may be able to show a need for special education, if she can demonstrate a social or behavioral problem that hinders her ability to benefit from the educational experience in school.17 See West Chester Area Sch. Dist. v. Bruce & Suzanne C. ex rel. Chad C., 194 F.Supp.2d 417, 420 (E.D. Pa. 2002) (“There is no precise standard for determining whether a student is in need of special education, and well-settled precedent counsels against invoking any bright-line rules for making such a determination.“); Venus Indep. Sch. Dist. v. Daniel S. ex rel. Ron S., No. CIV.A. 301CV1746P, 2002 WL 550455, at *11 (N.D. Tex. Apr. 11, 2002) (observing that “need” under the IDEA is not “strictly limited to academics, but also includes behavioral progress and the acquisition of appropriate social skills as well as academic achievement“); see also Robert A. Garda, Jr., Untangling Eligibility Requirements Under the Individuals with Disabilities Act, 69 Mo. L. Rev. 441, 499 (2004) (observing that “attendance and behavior are educational performance that must be addressed despite good academic performance” under the need inquiry because “[t]hey are not merely means to the end of academic achievement, but are themselves educational ends“).
The broader scope of the need inquiry is supported by the agency‘s emphasis on a holistic eligibility assessment. As the panel opinion notes, see supra Part II.B, the regulations provide that the eligibility inquiry must include a wide swath of measures and assessments, including a child‘s overall academic performance. See, e.g.,
In construing the scope of the need inquiry broadly, I do not discount the meaning of “neеd” in the second prong inquiry.
***
After careful consideration of the statute and governing case law, I am persuaded that the approach to the need inquiry outlined above is correct. I believe that this guidance is necessary and appropriate for the reasons already stated. I, therefore, add this concurrence.
Docket No. 13-4022
United States Court of Appeals, Second Circuit.
August 2, 2016
Argued: November 20, 2014