Hood v. Encinitas Union School

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANNA HOOD; LYNN HOOD; RICHARD 
HOOD, No. 04-57007
Plaintiffs-Appellants, D.C. No.
v.  CV-03-00778-RTB
ENCINITAS UNION SCHOOL DISTRICT AMENDED
and DOES 1-10,* OPINION
Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted
November 17, 2006—Pasadena, California
Filed April 9, 2007
Amended May 11, 2007
Before: Cornelia G. Kennedy,** Cynthia Holcomb Hall, and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Kennedy
*The complaint and notice of appeal list Does 1-10 as additional defen-
dants in the case. However, the complaint does not identify harms com-
mitted by Does 1-10 with any specificity, the district court does not
include any individuals or any Does 1-10 in its case caption, and the briefs
before this court do not contain any reference to Does 1-10. Thus, the sub-
stance of this opinion pertains to the Hoods’ claims against the Encinitas
Union School District.
** The Honorable Cornelia G. Kennedy, Senior Judge for the Sixth Cir-
cuit Court of Appeals, sitting by designation.
5445
5448 HOOD v. ENCINITAS UNION SCHOOL DISTRICT
COUNSEL
Eric B. Freedus (briefed and argued), Frank and Freedus, A
P.C., San Diego, California, for the plaintiffs-appellants.
Paul V. Carelli (briefed) and Jack M. Sleeth, Jr. (argued),
Stutz, Artiano, Shinoff & Holtz, A P.C., San Diego, Califor-
nia, for the defendant-appellee.
HOOD v. ENCINITAS UNION SCHOOL DISTRICT 5449
OPINION
KENNEDY, Senior Circuit Judge:
Anna Hood and her parents (hereinafter “appellants” or
“the Hoods”) brought this claim alleging that the Encinitas
Union School District (hereinafter “appellee” or “the school
district”) violated the Individuals with Disabilities Education
Act (“IDEA”), 20 U.S.C. §§ 1400-1419 (2000), by refusing to
provide Anna with special education services. This claim
seeks reimbursement for private school education that the
Hoods obtained for Anna after withdrawing her from the pub-
lic school system. A California special education hearing offi-
cer denied the Hoods relief, and the district court affirmed.
On appeal, the Hoods offer two grounds under which Anna
should be categorized as a child with a disability per 20
U.S.C. § 1401(3) and is therefore entitled to special educa-
tion. First, they assert that Anna has a “specific learning dis-
ability” because she exhibits a severe discrepancy between
her achievement and intellectual ability in one or more of the
academic areas enumerated in Cal. Educ. Code § 56337
(2002), as calculated per the formula provided in Cal. Code
Regs. tit. 5, § 3030(j)(4)(A) (2002), and the discrepancy can-
not be corrected through other regular or categorical services
offered within the regular instructional program. Second, they
assert that Anna has “other health impairments” under 20
U.S.C. § 1401(3)(A) and Cal. Code Regs. tit. 5, § 3030(f).
The Hoods argue that Anna, by reason of either her “specific
learning disability” or her “other health impairments,” needs
special education and related services. They seek to obtain
reimbursement for the expenses they incurred for private
school education, which the Hoods commenced during
Anna’s fifth grade 2001-2002 school year following the
school district’s determination that Anna was ineligible for
special education, as well as recoupment of fees and costs
related to this action.
5450 HOOD v. ENCINITAS UNION SCHOOL DISTRICT
After reviewing the evidence before the hearing officer and
additional evidence submitted to the district court, we find
that the district court’s acceptance of the hearing officer’s
determination that Anna was not legally entitled to receive
publically-funded special education was not in clear error. As
a result, we affirm.
BACKGROUND
At the time the California special education hearing officer
issued a decision, Anna Hood was 10 years old and, according
to her report cards, was performing at grade-level appropriate/
average or above average levels in the public school classroom.1
While Anna’s second, third, fourth, and fifth grade reports
chronicle her consistent difficulties completing tasks, turning
in homework on time, and keeping her belongings organized,
Anna’s scores on the Stanford Achievement Test (SAT-9)
have placed her above the fiftieth percentile with near unifor-
mity.
Meanwhile, Anna’s performance on various intelligence
tests indicates high intellectual ability. Anna’s scores on the
Woodson-Johnson Test of Achievement-III, administered by
resource specialist Patricia Hotz, measured Anna’s achieve-
ment in eleven different areas, and in all but one area, Anna’s
scores were average or better. One (writing sample) was in
the “very superior” range, eight were in the “high average”
range, one (reading fluency) was in the “average” range, and
one (math fluency) was in the “low average” range. She
received a Wechsler Intelligence Scale for Children-III verbal
score of 127, performance score of 110, and full scale score
of 121, as reported by school psychologist Susan Jordan.
Anna’s consulting neuropsychologist Nancy Markel adminis-
1
Anna did receive a “D+” academic score and an “S-” effort score in
spelling for her third term of the fourth grade, and her third grade report
card also indicates a “needs to improve” mark in cursive, but these
instances of low performance are anomalous.
HOOD v. ENCINITAS UNION SCHOOL DISTRICT 5451
tered the Comprehensive Test of Nonverbal Intelligence,
which produced a geometric I.Q. score of 136, a pictorial I.Q.
score of 121, and a nonverbal I.Q. score of 131. These scores
place her ability above average.
Anna has been the subject of a number of medical assess-
ments. She was born following a difficult pregnancy and has
a significant medical history, which includes multiple ear
infections that required tube placement, as well as far-
sightedness and strabismus. In January 2001, Dr. Joseph
Gleeson, a pediatric neurologist, upon reviewing the results of
a previously administered electroencephalogram, interpreted
Anna’s condition as consistent with a possible seizure disor-
der and prescribed medication accordingly. His letter also
noted a significant family history of seizures. After examining
Anna, Dr. Gleeson suspected that Anna had the same condi-
tion as her older brother, though he expressed that it was “not
entirely clear” that Anna was having seizures. Dr. Gleeson
viewed such a seizure disorder as an explanation of Anna’s
apparent spells of distractibility and tendency to miss things
that had happened.
After a subsequent visit with Anna in April 2001, Dr. Glee-
son stated unequivocally that Anna “had an EEG that had sig-
nificant abnormalities consistent with epilepsy” and observed
that Anna suffered from “increasing distractibility and diffi-
culty staying on task that appeared to come in spells.” He rec-
ommended that Anna be evaluated for a possible attention
deficit disorder because of her reported difficulties staying on
task and her increased distractibility. Anna eventually began
taking medication for the attention problem.
Prompted by the receipt of Dr. Gleeson’s initial report, the
school district instituted an accommodation plan in accor-
dance with Section 504 of the Rehabilitation Act of 1973, 29
U.S.C. § 794, in February 2001.2 The plan included preferen-
2
Appellants assert that “Anna was only able to achieve roughly average
grades” “[d]espite years of accommodations through a ‘504 Plan.’ ” How-
5452 HOOD v. ENCINITAS UNION SCHOOL DISTRICT
tial seating in the classroom, use of a graphic organizer and
AlphaSmart keyboard, one-step directions, visual support for
instruction and concepts, frequent prompts and checks for
understanding, and daily teacher checks for homework assign-
ments.
On May 15, 2001, Anna’s advocate, Sara Frampton, wrote
to the district to request a special education evaluation. In this
letter, Frampton acknowledged that “[Anna] ha[d] recently
been offered a 504 plan” but expressed her concern that the
plan had “not been based on a thorough assessment in all
areas of potential or suspected disability.” The district’s
psycho-educational assessment, performed by resource spe-
cialist Patricia Hotz and school psychologist Susan Jordan in
August and September 2001, included a battery of tests and
classroom observations. Jordan and Hotz ultimately issued a
report explicitly stating that “Anna has been diagnosed with
[a] Seizure Disorder . . . for which she takes medication” and
“[Anna’s] Seizure Disorder adversely affects her ability to
focus and pay attention in the regular classroom.” However,
Jordan and Hotz concluded that “[b]ased on State and Federal
guidelines, Anna does not qualify for Special Education ser-
vices at this time, as she is performing at least in the average
range academically, both in the classroom and in one-on-one
testing.” Additionally, the report noted Anna’s eligibility for
a Section 504 accommodation plan to assist Anna’s function-
ing in the regular classroom and advised that the IEP team
consider all information when determining eligibility, class
placement, and goals for Anna.
ever, February 12, 2001, marks the earliest documentation of a Section
504 plan contained within the record, indicating that the district only had
the benefit of eight months of experience with the Section 504 plan, inter-
rupted by a summer break, prior to the Individualized Education Plan
(IEP) meeting, at which it denied Anna special education eligibility.
Appellants became convinced of the Section 504 plan’s insufficience and
removed Anna from school after the plan had been in place for only one
year and just two months after it had been modified at appellants’ request.
HOOD v. ENCINITAS UNION SCHOOL DISTRICT 5453
On October 5, 2001, Jordan and Hotz convened with
Anna’s general education teacher, advocate, and mother for
an IEP meeting. The school district determined that Anna did
not qualify for special education services, specifically con-
cluding that “Anna does not have a learning disability.”
In December 2001, the school district reevaluated the Sec-
tion 504 plan in place and determined that it should be contin-
ued, changing it only to add an accommodation addressing
Anna’s mother’s concern about her daughter’s self-esteem.
Dissatisfied with the school district’s provision of services,
Anna’s parents withdrew their daughter from the school dis-
trict in February 2002, enrolled her in The Winston School,
a private school for children with learning differences, and
appealed to the California Special Education Hearing Office,
seeking to recover the amounts expended for tuition and assess-
ments.3
PROCEDURAL HISTORY
On February 25, 2003, a hearing commenced before an
officer of the California Special Education Hearing Office.
There, the officer placed the burden of proving compliance
with IDEA on the school district. Seattle Sch. Dist., No. 1 v.
B.S., 82 F.3d 1493, 1498 (9th Cir. 1996). After presiding over
four days of the presentation of oral and documentary evi-
dence, the hearing officer was persuaded that Anna’s impair-
ments did not necessitate special education or related services.
The officer determined that the school district did not violate
IDEA and denied reimbursement to Anna’s parents for their
child’s private placement. The hearing officer found that, in
general, the results of Anna’s testing did not reveal a discrep-
ancy equal to or greater than 1.5 standard deviations, the regu-
latory measure of a discrepancy that is severe. See Cal. Code
3
When Anna entered middle school in September 2003, she transitioned
from Encinitas Union to the San Dieguito Unified High School District,
where she was found to be eligible for special education.
5454 HOOD v. ENCINITAS UNION SCHOOL DISTRICT
Regs. tit. 5, § 3030(j)(4)(A). While he did find that a particu-
lar math fluency score might support the finding of a severe
discrepancy, he dismissed the issue based on Section
3030(j)(4)(A)’s instructions that no single score or product of
scores shall be used as the sole criterion and that a discrep-
ancy may only be considered a severe discrepancy when it is
corroborated by other assessment data. Ultimately, the hear-
ing officer concluded that the totality of the evidence, includ-
ing Anna’s work samples, scores from other tests, and
classroom observations, provided a reasonable basis for the
school district to determine that Anna’s specific learning dis-
ability did not require special education. The hearing officer
also found that Anna did not have any “other health impair-
ments” to potentially qualify her for special education ser-
vices under 20 U.S.C. § 1401(3)(A), concluding that Anna’s
evidence of seizure disorder or attention deficit disorder did
not bring her under the auspices of the statute. While the offi-
cer noted that Anna exhibited difficulty organizing and focus-
ing on her work, he expressed that “[i]t was not clear from the
evidence whether Anna’s difficulties with attention and orga-
nization were due to the seizure disorder, an attention deficit
disorder, or something else.” Additionally, he felt he could
not conclude whether the seizure disorder and/or attention
deficit disorder “actually caused Anna to have limited
strength, vitality or alertness,” as required by regulation. See
Cal. Code Regs. tit. 5, § 3030(f). Based on these deficiencies,
the hearing officer determined that the district had met its bur-
den of proving IDEA compliance because the evidence did
not establish that Anna met the eligibility criteria for possess-
ing any “other health impairments,” and accordingly, he
denied relief.
Pursuant to 20 U.S.C. § 1415(i)(2), the Hoods sought to
enforce their IDEA rights in federal court. The burden of
proof in the district court rested with the Hoods as the party
challenging the administrative decision. Clyde K. v. Puyallup
Sch. Dist., No. 3, 35 F.3d 1396, 1399 (9th Cir. 1994), super-
seded by statute on other grounds, Individuals with Disabili-
HOOD v. ENCINITAS UNION SCHOOL DISTRICT 5455
ties in Education Act, Pub. L. No. 105-17, 111 Stat. 37, as
recognized in M.L. v. Fed. Way Sch. Dist., 341 F.3d 1052,
1063 n.7 (9th Cir. 2003). The district court upheld the Califor-
nia Special Education Hearing Office’s decision that the
school district’s refusal to afford Anna special education did
not violate the law. The court based its decision on the con-
clusion that the Hoods had not shown that Anna’s discrepancy
“[could ]not be corrected through other regular or categorical
services offered within the regular instructional program,”
rejecting the Hoods’ argument that the hearing officer
employed the incorrect standard to determine whether the dis-
crepancy could be corrected. See Cal. Educ. Code § 56337(c)
(2003). It found that the hearing officer explicitly cited Sec-
tion 56337(c) and stated that he “was not convinced” that “the
discrepancies could not be corrected through the services
offered within the regular instruction program.” In deciding
the issue of the “specific learning disability” on those
grounds, the court refrained from determining whether Anna
exhibited a discrepancy between her ability and performance
that rose to the level of “severe” under the calculations pre-
scribed in § 3030(j)(4)(A) and accepted appellee’s assertion
that Anna’s learning disability could be addressed with modi-
fications to the regular classroom programming.
The district court also approved of the hearing officer’s
conclusion that the Hoods had not shown that Anna’s discrep-
ancy, even if severe, was beyond correction in the normal
classroom. The district court emphasized that the language of
the statute necessitates measurement of the discrepancy
between ability and achievement over time, and thus an iso-
lated assessment of the difference between Anna’s ability and
achievement could not suffice.
The district court also rejected the argument that Anna
experienced some “other health impairment” that would qual-
ify her for special education under 20 U.S.C. § 1401(3)(A). It
explained that the hearing officer’s conclusion that Anna was
not eligible under the “other health impairments” provision
5456 HOOD v. ENCINITAS UNION SCHOOL DISTRICT
was supported by record evidence and the testimony of wit-
nesses.
STANDARD OF REVIEW
This court uses a clear error standard to review the district
court’s findings of fact even when they are based on the writ-
ten record of administrative proceedings. Gregory K. v. Long-
view Sch. Dist., 811 F.2d 1307, 1310 (9th Cir. 1987). “A
finding of fact is clearly erroneous when the evidence in the
record supports the finding but the reviewing court is left with
a definite and firm conviction that a mistake has been com-
mitted.” Amanda J. v. Clark County Sch. Dist., 267 F.3d 877,
887 (9th Cir. 2001) (internal quotations omitted).
This court reviews questions of law and mixed questions of
fact and law de novo unless the mixed question is primarily
factual. Gregory K., 811 F.2d at 1310.4 “Because Congress
intended states to have the primary responsibility of formulat-
ing each individual child’s education, this court must defer to
their ‘specialized knowledge and experience’ by giving ‘due
weight’ to the decisions of the states’ administrative bodies.”
Amanda J., 267 F.3d at 888 (quoting Bd. of Educ. v. Rowley,
458 U.S. 176, 206-08 (1982)). The “thorough and careful”
findings of a hearing officer are entitled to deference. Union
Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir. 1994).
DISCUSSION
I. “Specific Learning Disability”
[1] Upon review of the record, hearing officer’s opinion,
and appellate briefs, we conclude that the district court did not
clearly err in determining that Anna was not legally entitled
4
Although appellant argues for de novo review, the fact-intensive nature
of a special education eligibility determination coupled with consider-
ations of judicial economy render a more deferential approach appropriate.
HOOD v. ENCINITAS UNION SCHOOL DISTRICT 5457
to special education based on a “specific learning disability.”
IDEA provides qualified disabled children with access to a
free appropriate public education that includes an individual-
ized education program tailored to the child’s unique needs.5
Section 1401(3) defines, in relevant part, a “child with a dis-
ability” to include a child “(i) with . . . other health impair-
ments, or specific learning disabilities; and (ii) who, by reason
thereof, needs special education and related services.” Section
56337 of the California Education Code clarifies “specific
learning disability” as follows:6
A pupil shall be assessed as having a specific learn-
ing disability which makes him or her eligible for
special education and related services when it is
determined that all the following exist:
(a) A severe discrepancy exists between the intellec-
tual ability and achievements in one or more of the
following academic areas:
(1) Oral expression.
5
IDEA specifies that the term “specific learning disability . . . does not
include a learning problem that is primarily the result of visual, hearing,
or motor disabilities, of mental retardation, of emotional disturbance, or of
environmental, cultural, or economic disadvantage.” 20 U.S.C.
§ 1401(26)(2000) (to be re-codified at 20 U.S.C. § 1401(30)).
6
Subsequent to the hearing officer’s ruling, Congress passed a law,
effective July 1, 2005, stating that in determining whether a child has a
“specific learning disability,” a school district “shall not be required to
take into consideration whether a child has a severe discrepancy between
achievement and intellectual ability. . . .” Pub. L. No. 108-446,
§ 614(b)(6)(A), 118 Stat. 2647, 2706 (2004) (to be codified at 20 U.S.C.
§ 1414(b)(6)(A)). The California Education Code has also been revised to
mimic these changes. Cal. Educ. Code § 56337(b) (2006). However, as
there is no indication that retroactive application was intended, and the
district court applied the law as it was written prior to the amendment, we
do the same in the context of our review.
5458 HOOD v. ENCINITAS UNION SCHOOL DISTRICT
(2) Learning comprehension.
(3) Written expression.
(4) Basic reading skills.
(5) Reading comprehension.
(6) Mathematics calculation.
(7) Mathematics reasoning.
(b) The discrepancy is due to a disorder in one or
more of the basic psychological processes and is not
the result of environmental, cultural, or economic
disadvantages.
(c) The discrepancy cannot be corrected through
other regular or categorical services offered within
the regular instructional program.
[2] Title 5, Section 3030(j)(4)(A) of the California Code of
Regulations provides the calculation relevant for determining
whether a discrepancy is severe:
When standardized tests are considered to be valid
for a specific pupil, a severe discrepancy is demon-
strated by: first, converting into common standard
scores, using a mean of 100 and standard deviation
of 15, the achievement test score and the ability test
score to be compared; second, computing the differ-
ence between these common standard scores; and
third, comparing this computed difference to the
standard criterion which is the product of 1.5 multi-
plied by the standard deviation of the distribution of
computed differences of students taking these
achievement and ability tests. A computed difference
which equals or exceeds the standard criterion,
HOOD v. ENCINITAS UNION SCHOOL DISTRICT 5459
adjusted by one standard error of measurement, the
adjustment not to exceed 4 common standard score
points, indicates a severe discrepancy . . . .”
However, Section 3030(j)(4)(A) avoids total reliance on a
mathematical calculation by immediately adding to the above
passage that the calculation indicates a severe discrepancy
only “when such discrepancy is corroborated by other assess-
ment data which may include other tests, scales, instruments,
observations and work samples, as appropriate.”
[3] The federal district court, the hearing officer, and the
school district itself each based its decision regarding the
severity of the discrepancy on factors other than the Section
3030 calculation. The district court expressly stated that
“[f]ortunately for this Court, this Court need not attempt to
assess the accuracy of either side’s § 3030(j) calculation . . .
because both sides ultimately focus on the last part of the
§ 56337 test[,]” that is, whether the discrepancy could be cor-
rected in the general classroom. The hearing officer examined
the correctability issue and also looked to the need for corrob-
orating evidence to support the raw mathematical data.
According to the hearing officer’s opinion, the school dis-
trict’s denial of Anna’s eligibility for special education was
justified because “Anna’s overall performance, including
classroom achievement, grades and SAT-9 testing, not only
failed to provide the necessary corroboration, but also demon-
strated that she did not require special education.”
The school district’s appellate brief takes issue with aspects
of the calculation, essentially arguing that the appellants over-
simplified the regulation’s prescribed computation by failing
to consider the degree to which students’ scores generally dif-
fer between the ability and achievement tests employed, that
is, the success of the intelligence test at predicting actual per-
formance. However, because the school district asserted
agreement at oral argument that Anna’s scores satisfied the
5460 HOOD v. ENCINITAS UNION SCHOOL DISTRICT
mathematical standard for a severe discrepancy, we will inter-
pret their argument to concede this issue.
[4] We need not consider whether Anna satisfies the calcu-
lation. Our decision hinges upon appellants’ failure to satisfy
the second requirement of the “specific learning disability”
qualification for special education eligibility, that being
whether any existing severe discrepancy between ability and
achievement “[could] not be corrected through other regular
or categorical services offered within the regular instructional
program.” Cal. Educ. Code § 56337. Thus, even assuming the
existence of a severe discrepancy, the law does not entitle
Anna Hood to special education if we find that her discrep-
ancy can be corrected in the regular classroom.
The Hoods argue that the hearing officer employed the
wrong standard for assessing correctability and claim that the
district court “cherry-picked” language to justify a conclusion
that he applied the correct legal standard. On appeal, the
Hoods cite district court cases from other circuits to argue that
the ability to pass from grade to grade, or progress in the gen-
eral curriculum, or exhibit average performance relative to
peers is not sufficient to render a child ineligible for IDEA
benefits. But these cases do not address California’s “correc-
tability” prong and thus offer limited guidance regarding
whether a student’s severe discrepancy is correctable in the
regular classroom environment. Moreover, even the cases the
Hoods cite permit districts to consider a student’s relative per-
formance as one factor in an eligibility inquiry. See, e.g., Cor-
chado v. Bd. of Educ. Rochester City Sch. Dist., 86 F. Supp.
2d 168, 176 (W.D.N.Y. 2000). However, the Hoods’ brief
offers no case law in support of the standard that it proposes
for judging correctability, that is, whether instruction offered
in the general classroom will narrow the mathematical dis-
crepancy between the student’s own achievement and intel-
lectual potential.
[5] Classic IDEA jurisprudence and administrative deci-
sions prove useful when contemplating the standard appropri-
HOOD v. ENCINITAS UNION SCHOOL DISTRICT 5461
ate to assess “correctability” and factors informative to the
determination of whether the standard is satisfied. For exam-
ple, in Rowley, the paradigm IDEA case, the Supreme Court
determined that the state satisfies the requirement to provide
a handicapped child with a “free appropriate public educa-
tion” by providing “personalized instruction with sufficient
support services to permit the child to benefit educationally
from that instruction.” Rowley, 458 U.S. at 203 (emphasis
added). While it is true that the Rowley case dealt with the
level of services that must be provided to a student already
deemed eligible for special education, rather than special edu-
cation eligibility itself, “[the Ninth Circuit] ha[s] applied the
Rowley framework in numerous cases.” Van Duyn v. Baker
Sch. Dist. 5J, 481 F.3d 770, 776 (9th Cir. 2007). This court
has emphasized that “states are obligated to provide ‘a basic
floor of opportunity’ through a program ‘individually
designed to provide educational benefit to a handicapped
child,’ ” rather than “potential-maximizing” education. Ash v.
Lake Oswego Sch. Dist., No. 7J, 980 F.2d 585, 587 (9th Cir.
1991) (citing Gregory K., 811 F.2d at 314). The Supreme
Court explicitly stated in Rowley that IDEA does not contain
a requirement “that the services so provided be sufficient to
maximize each child’s potential commensurate with the
opportunity provided other children.” Rowley, 458 U.S. at 198
(internal quotations omitted). Just as courts look to the ability
of a disabled child to benefit from the services provided to
determine if that child is receiving an adequate special educa-
tion, it is appropriate for courts to determine if a child classi-
fied as non-disabled is receiving adequate accommodations in
the general classroom—and thus is not entitled to special edu-
cation services—using the benefit standard. Accordingly, the
district court used the correct standard of review when it con-
sidered the benefit Anna received in the regular classroom as
part of its eligibility analysis.
The Supreme Court in Rowley elaborated that “if the child
is being educated in the regular classrooms of the public edu-
cation system, [an IEP] should be reasonably calculated to
5462 HOOD v. ENCINITAS UNION SCHOOL DISTRICT
enable the child to achieve passing marks and advance from
grade to grade.” Id. at 204. The Court was careful to provide
in a footnote that it did not intend to suggest that advancement
from grade to grade was always dispositive. Id. at 203 n.25.
However, in the case before it, the Court found “[the child]’s
academic progress, when considered with the special services
and professional consideration accorded by the . . . school
administrators, to be dispositive.” Id.
California Special Education Hearing Office opinions also
indicate the importance of grades and educators’ assessments
when determining whether a child with a severe discrepancy
between his ability and achievement is reaping some educa-
tional benefit in the general classroom. The hearing officer in
Student v. Sunnyvale Elementary School District examined as
evidence passing or average grades earned without the benefit
of special education and gave credence to the opinion the
resource specialist and school psychologist provided that any
weakness that the child exhibited could be corrected within
the regular education program. Student v. Sunnyvale Elemen-
tary Sch. Dist. (1998) SN 00-00092. Similarly, in Student v.
Long Beach Unified School District, the hearing officer con-
sidered the testimony of teachers and looked at the student’s
ability to continue maintaining grades sufficient to remain
enrolled in an accelerated program as indicative of his ability
to benefit from education in the regular classroom. Student v.
Long Beach Unified Sch. Dist. (1999) SN 00-00721.
[6] Application of this benefit standard to the facts pres-
ented in this case indicates that Anna does not qualify for spe-
cial education due to a “specific learning disability” because
any existing severe discrepancy between ability and achieve-
ment appears correctable in the regular classroom. As the
hearing officer noted, “[i]t [is] virtually undisputed in this
case that Anna has been progressing in the general curriculum
along with her peers.” She received nearly uniformly average
or above average grades. At the hearing, Michelle Dennis,
Anna’s fourth grade teacher, testified that Anna was a highly
HOOD v. ENCINITAS UNION SCHOOL DISTRICT 5463
proficient student. According to the hearing officer, Dennis
“was adamant that she would not have considered referring
Anna for special education because she was working at or
above grade level.” Sidney Sickels, Anna’s teacher for
approximately a month immediately preceding her withdrawal
from the school district, testified that Anna was capable of
producing work at grade level and that he did not believe that
Anna needed to be referred to special education. Dennis Rota,
Anna’s fifth grade science teacher, agreed. Dr. Beverly Bar-
rett, director of pupil personnel services for the school district,
testified that the IEP team did not feel that Anna’s conditions
had a significant impact on her performance necessitating spe-
cial education, as she was not performing below grade level.
According to this evidence, it appears that the hearing officer
was justified in concluding that Anna is receiving the requi-
site benefit from her education such that the school district is
in compliance with the law.
The school district acknowledges in its brief that “there will
always be some private school that can provide—perhaps at
great expense—an education that is better than the education
that can be provided by some other less expensive private
school, or perhaps the public school.” School districts must
function within budgetary constraints that are often quite bur-
densome. In essence, the Hoods assert that the law guarantees
a learning-disabled child of superior ability enough individu-
alized attention and services—likely financed by the school’s
special education budget—to elicit optimum performance
from the child, when clearly no such requirement exists for
children without disabilities, gifted or not. As the school dis-
trict points out, “[a]rguably, all children would perform better
with more services.” The Supreme Court has directed that
“we are not free ‘to substitute [our] own notions of sound
educational policy for those of the school authorities which
[we] review.’ ” Amanda J., 267 F.3d at 887 (quoting Rowley,
458 U.S. at 206).
5464 HOOD v. ENCINITAS UNION SCHOOL DISTRICT
[7] The school district asserts that the Section 504 accom-
modations plan was the appropriate way to meet Anna’s
needs. At the time when the Hoods withdrew Anna from the
school district, the record indicates that Anna had only been
in the general classroom with her Section 504 modification
plan for the latter portion of the fourth grade and the begin-
ning portion of the fifth grade. Thus, it is difficult to judge its
success at meeting Anna’s unique needs.7 The Section 504
plan was directly tailored to address Anna’s weaknesses. In
her testimony before the hearing officer, Michelle Dennis,
Anna’s fourth grade teacher, acknowledged that Anna some-
times required additional guidance or extra time to complete
tasks. Similarly Sidney Sickels, Anna’s fifth grade teacher,
and Dennis Rota, Anna’s fifth grade science teacher, noted
that Anna had problems with missing assignments, complet-
ing work in a timely fashion, and organizing tasks. The hear-
ing officer had sufficient reason to conclude that the
accommodations that the school district offered Anna via her
Section 504 plan, particularly the provisions for daily teacher
checks for homework assignments, one-step directions, and
use of a graphic organizer, would assist with Anna’s difficul-
ties and allow her to excel in the regular classroom. It was
certainly not clear error for the district court to accept the
hearing officer’s judgment.
II. “Other Health Impairments”
[8] In addition, we conclude that the district did not clearly
7
The record does not support appellants’ assertion that Anna experi-
enced “accommodations through a ‘504 Plan’ ” for “years.” The record
indicates the creation of a Section 504 plan in February 2001, and Framp-
ton’s May 15, 2001 letter to the school district indicates her understanding
that “[Anna] ha[d] recently been offered a 504 plan” (emphasis added).
This would indicate that the Hoods withdrew Anna from her elementary
school, where she was exhibiting grade-level appropriate performance,
after approximately one year of schooling with modifications specifically
designed to meet her needs and about two months after the plan had been
modified at appellants’ request.
HOOD v. ENCINITAS UNION SCHOOL DISTRICT 5465
err in determining that Anna was not legally entitled to special
education based on an “other health impairment,” in the form
of a seizure disorder or attention deficit disorder. Section
1401(3)(A) of IDEA defines “child with a disability” to
include a student with “other health impairments” necessitat-
ing special education services. Section 3030(f) explains that
a pupil experiences such an impairment when she has “limited
strength, vitality or alertness, due to chronic or acute health
problems, including but not limited to . . . epilepsy . . . .” Cal.
Code Regs. tit. 5, § 3030(f). California Education Code
§ 56339 (2001) elaborates that an attention deficit disorder
can also constitute a chronic or acute health problem for the
purposes of Section 3030(f).
According to Cal. Educ. Code § 56339, in relevant part:
(a) A pupil whose educational performance is
adversely affected by a suspected or diagnosed atten-
tion deficit disorder or attention deficit hyperactivity
disorder and demonstrates a need for special educa-
tion and related services by meeting eligibility
criteria specified in subdivision (f) . . . of Section
3030 of Title 5 of the California Code of Regulations
. . . for the federal Individuals with Disabilities Edu-
cation Act (20 U.S.C. Sec. 1400 and following) cate-
gor[y] of “other health impairments” . . . is entitled
to special education and related services.
(b) If a pupil with an attention deficit disorder or
attention deficit hyperactivity disorder is not found
to be eligible for special education and related ser-
vices pursuant to subdivision (a), the pupil’s instruc-
tional program shall be provided in the regular
education program.
Additionally, as with all eligibility categories, the child’s
“other health impairment” must require instruction, services,
or both, which cannot be provided with modification of the
5466 HOOD v. ENCINITAS UNION SCHOOL DISTRICT
regular school program per California Education Code
§ 56026(b). The hearing officer found the evidence that Anna
had a seizure disorder and attention deficit disorder to be
inconclusive, and ultimately he concluded that “Anna did not
require special education to meet her educational needs[,]”
which “could be met with appropriate accommodations in the
regular education environment.” On appeal of the hearing
officer’s decision, the district court summarily accepted the
hearing officer’s findings and stated that, because “the evi-
dence was inconclusive[,] . . . Anna did not meet the eligibil-
ity criteria specified in § 3030(f).”
While the appendices do not appear to contain copies of
diagnoses for seizure or attention deficit disorders, other evi-
dence indicates that Anna’s strength, vitality, or alertness had
a physiological explanation.8 However, neither the hearing
officer’s decision nor the district court’s holding was con-
trolled by the decision that Anna did not suffer from an “other
health impairment.” Rather, the hearing officer rested his
decision that the school district did not need to provide special
education on the conclusion that “[Anna’s] needs could be
met with appropriate accommodations in the regular educa-
tion environment.” Likewise, the district court seemed to base
its decision on the conclusion that any “other health impair-
ment” that Anna did suffer from did not adversely affect her
performance to the extent that she required education outside
of the general classroom. In doing so, the district court
remarked that the hearing officer’s findings on the issue were
“carefully detailed [and] supported by the record evidence and
the testimony of hearing witnesses.” Similarly, we need not
determine whether Anna has an “other health impairment” in
the form of a seizure disorder or attention deficit disorder, as,
even assuming this to be true, we conclude that the law would
not entitle Anna to benefits because it was reasonable for the
hearing officer to conclude that any impairment can be
8
In the case of attention deficit disorder, Cal. Educ. Code § 56339 indi-
cates that either a suspected or diagnosed disorder would suffice.
HOOD v. ENCINITAS UNION SCHOOL DISTRICT 5467
accommodated in the general classroom. The school district
determined that a Section 504 plan would be sufficient to
serve Anna’s special needs. To attempt to accommodate
Anna, in spite of her medical conditions, in the general class-
room is consistent with the concept of mainstreaming, an
objective that the school district is legally bound to pursue.
See 20 U.S.C. § 1412(a)(5).9 Deference to the hearing officer
and the policy determination of the school district itself is
appropriate, and the district court did not clearly err in
upholding the hearing officer’s decision that Anna did not
qualify for special education due to an “other health impair-
ment.”
CONCLUSION
For the reasons set forth above, the judgment of the court
below is AFFIRMED.
9
The Winston School is a non-public college preparatory school for
learning-disabled students. Because we deny reimbursement of the
school’s tuition, we need not decide whether placement in such a school
would constitute an education that comports with the 20 U.S.C.
§ 1412(a)(5), which requires that, “[t]o the maximum extent appropriate,
children with disabilities, including children in public or private institu-
tions or other care facilities, are educated with children who are not dis-
abled, and special classes, separate schooling, or other removal of children
with disabilities from the regular educational environment occurs only
when the nature or severity of the disability of a child is such that educa-
tion in regular classes with the use of supplementary aids and services can-
not be achieved satisfactorily.”