Michael P. v. Department of Education

656 F.3d 1057, 2011 U.S. App. LEXIS 18616, 2011 WL 3928069
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 8, 2011
Docket09-16078
StatusPublished
Cited by21 cases

This text of 656 F.3d 1057 (Michael P. v. Department of Education) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Michael P. v. Department of Education, 656 F.3d 1057, 2011 U.S. App. LEXIS 18616, 2011 WL 3928069 (9th Cir. 2011).

Opinions

Opinion by Judge PREGERSON; Dissent by Judge CLIFTON. .

OPINION

PREGERSON, Circuit Judge:

Courtney G., a minor with dyslexia, by and through her mother and Guardian Ad Litem, Elizabeth G.,1 appeals from the district court’s order affirming the Administrative Hearings Officer’s (“Hearing Officer”) conclusion that the Hawaii Department of Education (“Hawaii DOE”) properly found Courtney ineligible for services under the Individuals with Dis[1060]*1060abilities Education Act (“IDEA”). Hawaii DOE determined that Courtney did not qualify for special education under the “specific learning disability” classification because she could not demonstrate a “severe discrepancy” between her actual achievement and her intellectual capacity. Both the Hearing Officer and the district court rejected Courtney’s argument that Hawaii DOE violated IDEA by relying exclusively on the “severe discrepancy model” to determine whether she had a “specific learning disability.” We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand.

BACKGROUND

A. Statutory Background

“Congress enacted IDEA in 1970 to ensure that all children with disabilities are provided a free appropriate public education which emphasizes special education and related services designed to meet their unique needs and to assure that the rights of such children and their parents or guardians are protected.” Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 129 S.Ct. 2484, 2491, 174 L.Ed.2d 168 (2009) (internal marks omitted) (citing Sch. Comm. of Burlington v. Dep’t of Educ. of Mass., 471 U.S. 359, 367, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985)). To qualify for services under IDEA, a child must show (1) the existence of one or more disability classifications, and (2) a need for special education. 20 U.S.C. § 1401(3)(A).

To establish eligibility under the “specific learning disability” classification, a student must show that she (1) has “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 ... read, write, spell, or to do mathematical calculations, including conditions such as ... dyslexia,” 34 C.F.R. § 300.8(c)(10)(i); and (2) she needs special education. 20 U.S.C. §§ 1401(3)(A), 1401(30)(A). For many years, federal regulations required students to demonstrate their need for special education under the “specific learning disability” classification by showing a “severe discrepancy” between actual achievement and intellectual ability. See Dixie Snow Huefner, The Final Regulations for the Individuals with Disabilities Education Improvement Act (IDEA '04), 217 Ed. Law Rep. 1, 8-9 (2007); see also Mark C. Weber, The IDEA Eligibility Mess, 57 Buff. L.Rev. 83, 123-24 (2009).

The federal regulations did not define “severe discrepancy,” but rather, left the matter to the discretion of each state. Perry A. Zirkel, The Legal Meaning of Specific Learning Disability for Special Education Eligibility, 28 (2006). Hawaii defined a “severe discrepancy” as a 1.5 standard deviation between actual achievement and intellectual ability scores. Haw. Code R. § 8-56-26(b) (repealed Nov. 23, 2009). Alternatively, if standardized tests were invalid or did not reveal a statistically significant deviation, Hawaii permitted consideration of additional evidence to determine whether a “severe discrepancy” existed, such as work samples and information provided by the parent. Haw.Code R. § 8-56-26(b) (repealed Nov. 23, 2009).

Over the last decade, scientific research has established that the “severe discrepancy model” is not necessarily a good indicator of whether a child has a learning disability. See Weber, supra at 123-27; H.R.Rep. No. 108-77 at 112 (2003). The “severe discrepancy model” is based on the premise that underperforming students with relatively high IQs must have a learning disability, whereas underperforming students with low IQs are just “slow.” See Suzanne Wilhelm, Accommodating Mental Disabilities in Higher Education: A Practical Guide to ADA Requirements, 32 [1061]*1061J.L. & Educ. 217 (2003). This premise is subject to dispute because intelligence testing is not the best indicator of academic potential. See Susan E. McGuigan, Documenting Learning Disabilities: Law Schools’ Responsibility to Set Clear Guidelines, 36 J.C. & U.L. 191,196. As a result, reliance on the “severe discrepancy model” tends to under-identify children with below average intelligence. Id. Moreover, education experts have criticized the model as unreliable, invalid, easily undermined, and harmful because it delays early treatment. See Weber, supra at 124.

• To address these growing concerns, Congress eliminated the “severe discrepancy” requirement when it reauthorized IDEA in 2004. See 20 U.S.C. § 1414(b)(6)(A) (“[W]hen determining whether a child has a specific learning disability ..., a local educational agency shall not be required to take into consideration whether a child has a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematical calculation, or mathematical reasoning.”); see also H.R.Rep. No. 108-77 at 112 (2003) (indicating that Congress is “discouraged by the widespread reliance on the IQ-achievement discrepancy model that serves as the determining factor of whether a child has a specific learning disability”).

Although the amended statute does not require school districts to use an alternative model to determine whether a student has a “specific learning disability,” it expressly permits use of the “response to intervention model.” See 20 U.S.C. § 1414(b)(6)(B) (“In determining whether a child has a specific learning disability, a local educational agency may use a process that determines if the child responds to scientific, research-based intervention ... ”). Moreover, legislative history endorses this model. See H.R.Rep. No. 108-77, at 107 (“The Committee is greatly encouraged by the growing use of alternative measures that are being used in place of the IQ-achievement discrepancy model [including the ‘response to intervention model’].”).

The premise underlying the “response to intervention model” is that “a majority of students can learn if effective instruction is provided.” Nicholas L. Townsend, Framing a Ceiling as a Floor: The Changing Definition of Learning Disabilities and the Conflicting Trends in Legislation Affecting Learning Disabled Students, 40 Creighton L.Rev. 229, 259 (2007).

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Michael P. v. Department of Education
656 F.3d 1057 (Ninth Circuit, 2011)

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656 F.3d 1057, 2011 U.S. App. LEXIS 18616, 2011 WL 3928069, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michael-p-v-department-of-education-ca9-2011.