N.B. v. Hellgate Elementary ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
N.B. and C.B., individually and as 
the parents of C.B., a minor,
Plaintiffs-Appellants,
No. 07-35018
v.
HELLGATE ELEMENTARY SCHOOL  D.C. No.
CV-05-00089-DWM
DISTRICT, by and through its
OPINION
BOARD OF DIRECTORS, MISSOULA
COUNTY, MONTANA,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, Chief District Judge, Presiding
Argued and Submitted
May 9, 2008—Seattle, Washington
Filed September 4, 2008
Before: Arthur L. Alarcón, Susan P. Graber, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Alarcón
12155
12160 N.B. v. HELLGATE ELEMENTARY
COUNSEL
Andrée Larose, Montana Advocacy Program, Helena, Mon-
tana, for the plaintiffs-appellants.
Elizabeth A. Kaleva, Missoula, Montana, for the defendant-
appellee.
Brett M. Schuman, Morgan, Lewis, & Bockius LLP, San
Francisco, California, for amici curiae.
OPINION
ALARCÓN, Circuit Judge:
I
Appellants, minor C.B. and his parents (collectively “Ap-
pellants”), allege that Hellgate Elementary School District
(“Hellgate”) violated the Individuals with Disabilities Educa-
tion Act (“IDEA”), 20 U.S.C.§ 1400, by failing to provide
minor C.B. with a free appropriate public education
(“FAPE”). Appellants appeal from the district court’s order,
affirming the hearing officer’s findings of fact, conclusions of
law, and order that found Hellgate did not violate the IDEA.
On appeal, Appellants argue that C.B.’s procedural and sub-
stantive rights under the IDEA were violated. Appellants
assert that Hellgate failed to meet its procedural obligation
under the IDEA to evaluate C.B. to determine whether he was
autistic. Appellants also contend that C.B. was denied his sub-
N.B. v. HELLGATE ELEMENTARY 12161
stantive rights under the IDEA when Hellgate denied him
extended school year (“ESY”) services. We vacate and
remand the district court’s order that Hellgate was not liable
for violating C.B.’s procedural rights under the IDEA. We
conclude that Hellgate did not fulfill its procedural require-
ments under the IDEA to evaluate C.B. We affirm the district
court’s decision that Hellgate did not violate C.B.’s substan-
tive rights in denying ESY services.
II
C.B. lives with his parents within the Hellgate School Dis-
trict in Missoula, Montana. Hellgate is a local educational
agency. It receives federal funding to fulfill its responsibility
to provide its students a FAPE.
A
Prior to moving to Missoula, Montana, in August 2003,
C.B. and his parents resided in Sparta Township, New Jersey.
On January 3, 2003, when C.B. was two years and ten months
old, he was examined by Dr. Arnold Gold. Dr. Gold con-
cluded that an “autistic component appears to be complicating
[C.B.]’s performance” and that speech therapy was manda-
tory.
The Sparta School District (“Sparta”) designed an Individu-
alized Education Program (“IEP”) for C.B. on June 4, 2003,
to be implemented from the period of July 1 to September 3,
2003, and the following school year. The IEP provided for
twelve and a half-hours of special instruction, including
speech/language therapy two times per week for thirty min-
utes, plus individual speech/language therapy two times per
week for thirty minutes.
B
After Appellants moved to Missoula, Montana, in the sum-
mer of 2003, C.B. enrolled in Hellgate Elementary School. In
12162 N.B. v. HELLGATE ELEMENTARY
August 2003, C.B.’s parents hand-delivered a copy of C.B.’s
medical and educational records to Hellgate’s special educa-
tion director, Sally Woodruff. At this meeting, C.B.’s parents
discussed Dr. Gold’s evaluation with Ms. Woodruff.
Hellgate adopted the IEP designed by Sparta in August
2003. When Hellgate personnel observed that the plan was
not benefitting C.B., it reduced speech therapy for a two and
a half-week period from August to September 2003. Jamie
Frost, the Hellgate speech pathologist, disagreed with the
need for two hours of weekly speech/language therapy pro-
vided for in the Sparta IEP. She stated that it caused C.B. to
“shut down” and “refuse to talk” in the classroom.
C.B.’s parents also enrolled him in Co-Teach, a private pre-
school program, in August 2003. C.B.’s parents informed Co-
Teach that they were enrolling him at Co-Teach because they
were “concerned about autism.”
On September 22, 2003, Hellgate convened a meeting to
develop a new IEP for C.B. C.B.’s parents were present. At
the meeting, Hellgate personnel stated that they lacked suffi-
cient information about C.B.’s educational needs to develop
specific IEP goals and objectives for him. Before this meet-
ing, the Hellgate members of the IEP team had read Dr.
Gold’s evaluation, but did not discuss it at the meeting. The
IEP team determined that C.B. should be evaluated by con-
ducting classroom observations for approximately six weeks
to assess his speech, language, behavioral, social, and pre-
school readiness skills. The IEP team’s plan was set forth in
a document entitled a “diagnostic IEP.” The diagnostic IEP
reduced educational and related services from thirteen and a
half hours to approximately five hours per week. It also
reduced speech therapy from two hours per week to one-half
hour per week. C.B.’s mother signed the diagnostic IEP.
On November 18, 2003, Hellgate conducted a meeting to
create an IEP to replace the diagnostic IEP. During this meet-
N.B. v. HELLGATE ELEMENTARY 12163
ing, C.B.’s parents suggested to Hellgate IEP team members
that C.B. might be autistic. The Hellgate IEP team referred
the parents to Missoula Child Development Center (“CDC”),
where free autism testing could be performed with parental
consent. On March 3, 2004, the CDC reported that C.B.
exhibited behavior consistent with autism spectrum disorder,
including significant ongoing speech and language deficits,
motor skill deficits, mild cognitive deficits, and atypical
behaviors. In response to the CDC’s diagnosis, the IEP team
reconvened on March 22, 2004. It revised the IEP, incremen-
tally increasing preschool instruction time from approxi-
mately five hours per week to twelve and a half hours per
week by May 24, 2004.
C
The IEP team reconvened on May 7, 2004, to develop
C.B.’s IEP for the 2004-05 school year and determine C.B.’s
need for ESY services. C.B.’s parents were present. The Hell-
gate IEP team members determined that C.B. did not require
ESY services. C.B.’s parents refused to endorse the proposed
IEP. They expressed their disagreement with the Hellgate
team members’ decision not to provide ESY services. The
parents did not sign the plan and did not enroll C.B. in Hell-
gate in September 2004.
III
A
Appellants filed a request for an impartial due process hear-
ing with the Montana Office of Public Instruction (“OPI”) on
or about September 28, 2004. An administrative due process
hearing was conducted over the course of seven days in Janu-
ary and February 2005. The due process hearing officer issued
his findings of fact, conclusions of law, and order on April 25,
2005, denying Appellants’ claim for relief.
12164 N.B. v. HELLGATE ELEMENTARY
B
Appellants filed a Complaint with the United States District
Court for the District of Montana on May 24, 2005. The dis-
trict court affirmed the hearing officer’s order. On January 3,
2007, Appellants filed a timely appeal with this court. This
court has jurisdiction under 28 U.S.C. § 1291, as this is an
appeal from a final judgment of a United States District Court
entered December 4, 2006. This is a civil action arising under
the laws of the United States, namely the IDEA. The district
court had jurisdiction pursuant to 28 U.S.C. § 1331 and 20
U.S.C. § 1415(i)(3) (1997).
IV
A
We review the district court’s findings of fact for clear
error even when they are based on the written record of
administrative proceedings. Burlington N., Inc. v.
Weyerhaeuser Co., 719 F.2d 304, 307 (9th Cir. 1983); Greg-
ory K. v. Longview Sch. Dist., 811 F.2d 1307, 1310 (9th Cir.
1987). A finding of fact is clearly erroneous when the evi-
dence in the record supports the finding but “the reviewing
court is left with a definite and firm conviction that a mistake
has been committed.” Burlington N., Inc., 719 F.2d at 307.
Questions of law and mixed questions of fact and law are
reviewed de novo, unless the mixed question is primarily fac-
tual. Gregory K., 811 F.2d at 1310. We review de novo the
question whether a school district’s proposed individualized
education program provided a FAPE. Id.B
[1] “The IDEA provides federal funds to assist state and
local agencies in educating children with disabilities, but con-
ditions such funding on compliance with certain goals and
procedures.” Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467,
N.B. v. HELLGATE ELEMENTARY 12165
1469 (9th Cir. 1993). Its goal is “to ensure that all children
with disabilities have available to them a free appropriate
public education that emphasizes special education and
related services designed to meet their unique needs and pre-
pare them for further education, employment, and indepen-
dent living.” 20 U.S.C. § 1400(d)(1)(A) (1997). The term
“free appropriate public education” is defined as “special edu-
cation and related services that . . . are provided in conformity
with the individualized education program required under sec-
tion 1414(d) of this title.” Id. § 1401(8)(D). The term “indi-
vidualized education program” is defined in the IDEA as “a
written statement for each child with a disability that is devel-
oped, reviewed, and revised in accordance with section
1414(d) of this title.” Id. § 1401(11).
[2] “[A] state must comply both procedurally and substan-
tively with the IDEA.” M.L. v. Fed. Way Sch. Dist., 394 F.3d
634, 644 (9th Cir. 2005) (citing Bd. of Educ. v. Rowley, 458
U.S. 176, 206-07 (1982)). In determining whether Hellgate
denied Plaintiff a FAPE, the court must engage in a two-step
inquiry. First, the court must examine “whether ‘the State
complied with the procedures set forth in the Act’ and, sec-
ond, whether ‘the individualized educational program devel-
oped through the Act’s procedures [was] reasonably
calculated to enable the child to receive educational bene-
fits.’ ” Amanda J. ex rel. Annette J. v. Clark County Sch.
Dist., 267 F.3d 877, 890 (9th Cir. 2001) (alteration in origi-
nal) (quoting Rowley, 458 U.S. at 206-07). However, the court
need not reach the question of substantive compliance if the
court finds “ ‘procedural inadequacies that result in the loss of
educational opportunity, or seriously infringe the parents’
opportunity to participate in the IEP formulation process, or
that caused a deprivation of educational benefits.’ ” Ms. S. ex
rel. G. v. Vashon Island Sch. Dist., 337 F.3d 1115, 1129 (9th
Cir. 2003) (quoting Amanda J., 267 F.3d at 892). Here,
Appellants contend that Hellgate failed to comply with both
the procedural and substantive requirements of the IDEA.
Each argument will be addressed in turn.
12166 N.B. v. HELLGATE ELEMENTARY
C
[3] Compliance with the IDEA procedures is “essential to
ensuring that every eligible child receives a FAPE, and those
procedures which provide for meaningful parent participation
are particularly important.” Amanda J., 267 F.3d at 891.
“When the elaborate and highly specific procedural safe-
guards embodied in [the IDEA] are contrasted with the gen-
eral and somewhat imprecise substantive admonitions
contained in the Act, we think that the importance Congress
attached to these procedural safeguards cannot be gainsaid.”
Rowley, 458 U.S. at 205. Furthermore, a school district must
comply not only with federal statutory and regulatory proce-
dures, but with state regulations as well: “State standards that
are not inconsistent with federal standards [under the IDEA]
are also enforceable in federal court.” W.G. v. Bd. of Trs. of
Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1483 (9th Cir.
1992).
Yet, as the Ninth Circuit has recognized, there is some lee-
way in the procedural requirements:
Not every procedural violation, however, is suffi-
cient to support a finding that the child in question
was denied a FAPE. Technical deviations, for exam-
ple, will not render an IEP invalid. On the other
hand, procedural inadequacies that result in the loss
of educational opportunity, or seriously infringe the
parents’ opportunity to participate in the IEP formu-
lation process, or that caused a deprivation of educa-
tional benefits, clearly result in the denial of a FAPE.
Amanda J., 267 F.3d at 892 (citations and internal quotations
omitted).
Appellants contend that C.B.’s IEPs were not developed in
compliance with the IDEA procedural requirements because:
(1) the diagnostic IEP was not valid; and (2) Hellgate failed
N.B. v. HELLGATE ELEMENTARY 12167
to meet its obligation to evaluate C.B. in all areas of suspected
disability. As explained below, we are persuaded that the dis-
trict court erred in determining that Hellgate complied with
the procedural requirements of the IDEA. We conclude that
Hellgate’s failure to meet its obligation to evaluate C.B. in all
areas of suspected disability, including whether he is autistic,
was a procedural error that denied C.B. a FAPE. Thus, this
court need not reach the question whether the diagnostic IEP
was valid.
D
Appellants assert that Hellgate failed to meet its obligation
under the IDEA to evaluate C.B. when it referred C.B.’s par-
ents to the CDC, for an autism evaluation, rather than arrang-
ing for an evaluation after being apprised of Dr. Gold’s
diagnosis. Appellants do not object to the fact that the CDC
conducted the evaluation; it is undisputed that Hellgate did
not have personnel qualified to conduct an autism evaluation.
Rather, Appellants maintain that Hellgate’s failure to obtain
the evaluation and to give C.B.’s parents notice that it would
pay the cost of an evaluation, if any, violated the IDEA, 20
U.S.C. § 1414(a)-(c) (1997). Appellants contend that the hear-
ing officer and the district court erroneously concluded that
C.B.’s parents had the burden of obtaining the evaluation
from the CDC. They also argue that Hellgate’s failure to
obtain a timely autism evaluation was fatal to the develop-
ment and delivery of a FAPE during the 2003-04 school year.
[4] A child must be tested in all areas of suspected disabil-
ity. 20 U.S.C. § 1414(b). The evaluation includes gathering
information “that may assist in determining . . . the content of
the child’s individualized education program, including infor-
mation related to enabling the child to be involved in and
progress in the general curriculum, or, for preschool children,
to participate in appropriate activities.” 20 U.S.C.
§ 1414(b)(2)(A) (1998). The “local educational agency shall
administer such tests and other evaluation materials as may be
12168 N.B. v. HELLGATE ELEMENTARY
needed to produce the data identified by the IEP Team” in
order to determine the needs of the child. Id. § 1414(c)(2).
“Each local educational agency shall ensure that—(B) any
standardized tests that are given to the child— . . . (ii) are
administered by trained and knowledgeable personnel.” Id.
§ 1414(b)(3)(B)(ii) (1998). In conducting or obtaining an
evaluation, the school district “shall ensure that the child is
assessed in all areas of suspected disability.” Id.
§ 1414(b)(3)(C) (1997); 34 C.F.R. § 300.532(g) (1999).
As of September 2003, Hellgate’s IEP team members were
on notice that C.B. likely suffered from some form of autism.
The record indicates that C.B.’s parents discussed Dr. Gold’s
evaluation with Hellgate’s special education director in
August 2003. Further, it is undisputed that by the time of the
September 2003 IEP meeting, Hellgate personnel had
reviewed Dr. Gold’s evaluation. This evaluation was enclosed
in C.B.’s file indicating that there was an “autistic compo-
nent” to C.B.’s poor performance.
[5] Hellgate suggested to C.B.’s parents that they obtain a
general evaluation of C.B. at the September 22, 2003, IEP
meeting. It referred C.B.’s parents to the CDC for general
testing. Hellgate contends that, despite this recommendation,
C.B.’s parents failed to procure an evaluation from the CDC
after the September 2003 IEP meeting. The fact that Hellgate
referred the parents to the CDC shows that Hellgate was
mindful that an evaluation was necessary. Thus, Hellgate’s
assertion that it did not suspect C.B. had autism prior to the
November 2003 IEP meeting, because C.B.’s parents had not
raised it at a prior IEP meeting, is not supported by the record.
Hellgate failed to meet its obligation to evaluate C.B. in all
areas of suspected disabilities after becoming aware of Dr.
Gold’s diagnosis.
[6] Hellgate did not fulfill its statutory obligations by sim-
ply referring C.B.’s parents to the CDC. Such an action does
not “ensure that the child is assessed,” as required by 20
N.B. v. HELLGATE ELEMENTARY 12169
U.S.C. § 1414(b)(3)(C). See also Union Sch. Dist. v. Smith, 15
F.3d 1519, 1523 (9th Cir. 1994) (holding that a parent’s fail-
ure to secure an evaluation, even if the parents agreed to
obtain it, does not excuse the school district’s obligation
under the IDEA to secure such an evaluation). In Union
School District, the parents of the student failed to turn over
portions of a report issued by a specialist that may have been
relevant to the placement of the student. Id. The court held
that the “failure of the [parents] to turn over portions of a spe-
cialist’s report cannot excuse the District’s failure to procure
the same information for itself.” Id.[7] A school district cannot abdicate its affirmative duties
under the IDEA. W.G., 960 F.2d at 1484-85. In W.G., the
school failed to ensure that the proper parties were involved
in the IEP meetings, as required by statute. Id.Target Range’s arguments that the parents are to
blame because they left the IEP meeting, did not file
a dissenting report, and led the district to believe that
the principal problem was transportation, are without
merit. The parents had no obligation to file a dissent.
...
The Act imposes upon the school district the duty
to conduct a meaningful meeting with the appropri-
ate parties. Target Range failed to do so. Target
Range failed to fulfill the goal of parental participa-
tion in the IEP process and failed to develop a com-
plete and sufficiently individualized educational
program according to the procedures specified by the
Act.
Id. at 1485.
[8] The failure to obtain critical medical information about
whether a child has autism “render[s] the accomplishment of
the IDEA’s goals—and the achievement of a FAPE—
12170 N.B. v. HELLGATE ELEMENTARY
impossible.” Amanda J., 267 F.3d at 894. In Amanda J., the
school district withheld from Amanda’s parents reports indi-
cating possible autism. This court stated:
We hold that, by failing to disclose Amanda’s full
records to her parents once they were requested, in
violation of 20 U.S.C. § 1415(b)(1)(A), the District
denied Amanda a FAPE. The IEP team could not
create an IEP that addressed Amanda’s special needs
as an autistic child without knowing that Amanda
was autistic. Even worse, Amanda’s parents were
not informed of the possibility that their daughter
suffered from autism—a disease that benefits from
early intensive intervention—despite the fact that the
district’s records contained test results indicating as
much. Not only were Amanda’s parents prevented
from participating fully, effectively, and in an
informed manner in the development of Amanda’s
IEP, they were not even aware that an independent
psychiatric evaluation was recommended, an evalua-
tion that Amanda’s mother testified she would have
had performed immediately. These procedural viola-
tions, which prevented Amanda’s parents from
learning critical medical information about their
child, rendered the accomplishment of the IDEA’s
goals—and the achievement of a FAPE—
impossible.
Id. Similar to the circumstances in Amanda J., without evalua-
tive information that C.B. has autism spectrum disorder, it
was not possible for the IEP team to develop a plan reason-
ably calculated to provide C.B. with a meaningful educational
benefit throughout the 2003-04 school year. Because of this
procedural error, Appellants are entitled to the costs of the
services that they incurred during the 2003-04 school year and
associated legal fees.
N.B. v. HELLGATE ELEMENTARY 12171
V
Appellants also assert that Hellgate denied C.B. his sub-
stantive right to a FAPE under the IDEA in refusing to pro-
vide C.B. with ESY services. Appellants contend that the
district court applied an incorrect standard in defining C.B.’s
substantive rights under the IDEA. They assert that the district
court erred in employing a “regression/recoupment” standard
in determining that C.B. was not entitled to ESY services, as
opposed to a multi-faceted inquiry, as purportedly required by
state law. Appellants also argue that a multi-faceted inquiry
would have disclosed that C.B. was entitled to receive ser-
vices during the summer of 2004. We disagree.
A
[9] The district court did not err in applying a regression/
recoupment standard. Under the IDEA, “[e]ach public agency
shall ensure that extended school year services are available
as necessary to provide FAPE.” 34 C.F.R. § 300.309(a)(1)
(1999). The federal regulation does not specify the factors to
be considered in determining entitlement to ESY services.
The Montana OPI identifies a variety of factors that may be
used to determine whether the regression/recoupment of skills
requires ESY services.1
1
The Montana OPI factors include:
• the nature and severity of the student’s disability;
• the ability of the student’s parents to provide educational
structure in the home;
• behavioral and physical impairments;
• the ability of the student to interact with peers;
• the student’s vocational needs;
• the availability of alternative resources; and
• whether there are “emerging skills” and “breakthrough oppor-
tunities,” as when a student is on the brink of learning to read.
Extended School Year Services at 3 (Montana Office of Public Instruction
2002).
12172 N.B. v. HELLGATE ELEMENTARY
The hearing officer found that Hellgate did not violate the
IDEA in refusing C.B.’s parents’ request that ESY be pro-
vided for the summer of 2004. In reaching this conclusion, the
hearing officer applied the regression/recoupment formula,
articulating the seven factors identified by the Montana OPI.
The hearing officer concluded that Hellgate complied with the
Montana OPI guideline for ESY entitlement. The hearing
officer reasoned as follows:
108. ESY criteria relevant to the student were con-
sidered by the team. The team considered the nature
and severity of his disability. The team considered
the ability of his parents to provide educational
structure at home. The team considered behavioral
and physical impairments.
109. After extensive discussion, it was concluded
that the student was not on the verge of breakthrough
opportunity of emerging skills because his progress
was steady and was not eligible for ESY services.
[10] In affirming the hearing officer’s discussion, the dis-
trict court relied on the regression/recoupment formula in its
discussion. Appellants contend that because the district court
did not articulate each of the Montana OPI factors, the district
court erred. Hellgate correctly notes that the language of the
Montana OPI instruction clarifies that the factors are used in
determining “whether regression/recoupment of skills
requires ESY services.” Extended School Year Services at 3.
The factors are therefore a part of the regression/recoupment
test. While the district court enunciated the regression/
recoupment test in a shorthand fashion, the district court made
the determination that C.B. was not entitled to ESY services
by appropriately using the Montana OPI factors.
B
Appellants also maintain that the hearing officer and dis-
trict court erred in determining that C.B. was not entitled to
N.B. v. HELLGATE ELEMENTARY 12173
ESY services. This circuit has not yet developed a standard
for determining when ESY services are appropriate under the
IDEA.
[11] Under the IDEA, schools are required to provide ESY
services as necessary in order to provide a child with a FAPE.
34 C.F.R. § 300.309(a). A school must provide these services,
however, only if the child’s IEP team determines that such
services are necessary “for the provision of FAPE to the
child.” Id. “[A] claimant seeking an ESY must satisfy an even
stricter test, because ‘providing an ESY is the exception and
not the rule under the regulatory scheme.’ ” Bd. of Educ. of
Fayette County v. L.M., 478 F.3d 307, 315 (6th Cir.) (quoting
Cordrey v. Euckert, 917 F.2d 1460, 1473 (6th Cir. 1990)),
cert. denied, 128 S. Ct. 693 (2007). “ESY Services are only
necessary to a FAPE when the benefits a disabled child gains
during a regular school year will be significantly jeopardized
if he is not provided with an educational program during the
summer months.” MM ex rel. DM v. Sch. Dist. of Greenville
County, 303 F.3d 523, 537-38 (4th Cir. 2002).
If the child benefits meaningfully within his poten-
tial from instruction under a proper IEP over a regu-
lar school year, then ESY service may not be
required under the Act unless the benefits accrued to
the child during the regular school year will be sig-
nificantly jeopardized if he is not provided an [ESY].
Cordrey, 917 F.2d at 1473 (internal quotation marks omitted)
(alteration in original). A claimant must show, in other words,
that “an ESY is necessary to permit [the child] to benefit from
his instruction.” Id. (internal quotation marks omitted) (alter-
ations in original). Claimants can rely on expert opinion testi-
mony to make this showing and are not required to present
empirical proof of actual prior regression. Id. at 1471-72.
On the question whether C.B. was entitled to ESY services,
the hearing officer heard conflicting expert testimony. Appel-
12174 N.B. v. HELLGATE ELEMENTARY
lants’ expert witness, Dr. Ilene Schwartz, testified that chil-
dren with autism needed to receive year-round services. She
also testified that summer programming was important for
consistency and continuity. Another of Appellants’ witnesses,
Dr. Kelker, did not agree that every child with a form of
autism needs ESY services. Dr. Kelker did opine that failure
to provide ESY denied C.B. a FAPE because the student’s
language skills were just beginning to emerge. But Dr. Kelker
had never met or observed C.B. and had no direct knowledge
of C.B.’s language skills.
Members of the IEP team testified on behalf of Hellgate
that C.B. was making steady progress. For example, Ms. Frost
testified that C.B. did not show regression during school
breaks. The hearing officer found that “[t]he data collected
done [sic] by the District staff regarding regression indicated
he did not show regression which could not be recouped, and
in some cases showed no regression at all.”
The hearing officer also concluded that the testimony by
Hellgate personnel, who had a daily relationship with C.B.,
was more persuasive than that of Appellants’ witnesses,
whose opinions were predominantly based on impersonal file
reviews. The IDEA provides, in pertinent part, that “the court
shall receive the records of the administrative proceedings,
shall hear additional evidence at the request of a party, and,
basing its decision on the preponderance of the evidence, shall
grant such relief as the court determines is appropriate.” 20
U.S.C. § 1415(i)(2)(B) (1999). As a result, the court may give
less than the usual deference to the administrative hearing
officer’s findings of fact. Vashon, 337 F.3d at 1126. Due
weight must be accorded to the administrative findings, and
the court determines how much weight to give to these find-
ings and to any additional evidence it deems appropriate to
admit. Id. at 1127. We define “due weight” as follows: “The
court, in recognition of the expertise of the administrative
agency, must consider the findings carefully and endeavor to
respond to the hearing officer’s resolution of each material
N.B. v. HELLGATE ELEMENTARY 12175
issue. After such consideration, the court is free to accept or
reject the findings in part or in whole.” Id. at 1127 n.16.
[12] We conclude that it was reasonable for the hearing
officer to rely on the testimony of Hellgate’s witnesses
because they had observed C.B.’s school performance. In
contrast, Appellants’ witnesses based their opinions predomi-
nantly upon file reviews. Thus, the district court and the hear-
ing officer did not err in determining that the denial of ESY
services was appropriate.
C
[13] Appellants also contend that the district court applied
an incorrect standard in determining whether C.B. was pro-
vided a FAPE. Under the 1997 amendments to the IDEA, a
school must provide a student with a “meaningful benefit” in
order to satisfy the substantive requirements of the IDEA. See
Adams v. Oregon, 195 F.3d 1141, 1145 (9th Cir. 1999)
(applying the “meaningful benefit” test); see also Deal v.
Hamilton County Bd. of Educ., 392 F.3d 840, 862 (6th Cir.
2004) (“[W]e agree that the IDEA requires an IEP to confer
a ‘meaningful educational benefit’ gauged in relation to the
potential of the child at issue.”).
[14] Here, the district court appears to have applied both
the pre-amendment Rowley “some educational benefit” stan-
dard2 and the heightened “meaningful benefit” standard.3 In
one part of the order, the district court explained:
2
The Rowley Court held that, while an IEP need not maximize the
potential of a disabled student, it must provide “meaningful” access to
education, and confer “some educational benefit” upon the child for whom
it is designed. Rowley, 458 U.S. at 200. As a result, if a school provided
a child with “some educational benefit,” it satisfied the requirements of the
IDEA, as established under Rowley. Id.3
In 1997, Congress amended the IDEA, obligating schools to provide
children with disabilities with more than “some educational benefit,” as
12176 N.B. v. HELLGATE ELEMENTARY
The Individualized Education Program is reason-
ably calculated to enable the child to receive educa-
tional benefit if it provides only some educational
benefit. [Rowley, 458 U.S. at 200]. These rules pro-
vide for a very low standard, setting a “floor of
opportunity. . .” This Court need only find that C.B.
advanced slightly to find that the program was rea-
sonably calculated to enable him to receive a benefit.
Id.In a different part of the order, the district court articulated the
“meaningful benefit” standard, stating: “The school’s
approach may be ‘reasonably calculated to confer meaningful
educational benefits,’ even though it may be different from
the parents’ approach.” The district court also stated: “Hell-
gate personnel all agreed that the September 22 interim [IEP],
using Sparta goals and objectives as a guide, provided mean-
ingful benefit.” Though the district court articulated two dif-
ferent FAPE standards, any error made in describing the test
is harmless because it did not err in its determination that
ESY services were not required.
CONCLUSION
We vacate and remand that portion of the district court’s
order that Hellgate fulfilled its procedural requirements under
the IDEA in developing the IEPs for the 2003-04 school year.
Upon remand, the district court is instructed to calculate the
costs incurred by C.B.’s parents for the 2003-04 school year
in providing alternative educational services, and their legal
prescribed by Rowley. This represented a significant shift in the focus
from the disability education system prior to 1997. The primary purpose
of the EHA [the predecessor to the IDEA] was to provide “access” to edu-
cation for disabled students. Id. at 179, 192 (noting that “the intent of the
Act was more to open the door of public education to handicapped chil-
dren on appropriate terms than to guarantee any particular level of educa-
tion once inside”).
N.B. v. HELLGATE ELEMENTARY 12177
fees. We affirm the district court’s order that Hellgate prop-
erly denied C.B. ESY services.
VACATED IN PART and REMANDED IN PART with
instructions; AFFIRMED IN PART.
Costs on appeal are awarded to Appellants.