Mr and Mrs Doe v. Cape Elizabeth School

United States Court of Appeals
For the First Circuit

No. 15-1155

MR. AND MRS. DOE,

Plaintiffs, Appellants,

v.

CAPE ELIZABETH SCHOOL DISTRICT,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. Jon D. Levy, U.S. District Judge]

Before

Barron, Selya, and Lipez,
Circuit Judges.

Richard O'Meara, with whom Kaitlyn M. Wright and Murray, Plumb
& Murray were on brief, for appellant.
Eric R. Herlan, with whom Erin R. Feltes 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, 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.

August 5, 2016
 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 relying on such evidence

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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 categorically barred under the first prong

inquiry, so long as they were determined to be relevant in

discerning a learning disability.

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. 20 U.S.C.

§ 1400(d)(1)(A). Pursuant to this objective, the statute mandates

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that states receiving federal funds under the statute provide

"special education and related services" to students who qualify

as children with disabilities. Id. §§ 1401(3)(A)(ii),

1412(a)(1)(A). All determinations regarding eligibility for

special education are hence governed, in the first instance, by

the definition of a "child with a disability." See id.

§ 1401(3)(A). A "child with a disability" is a child:

(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.

Id.

Accordingly, eligibility determinations proceed in two

steps. The first prong determines the existence of a

disorder1 -- here, a specific learning disability ("SLD"). Id.

§ 1401(3)(A)(i). The second prong identifies whether the child

1In this opinion, we use the term "disorder," in addition to
the term "disability," to refer to one of the qualifying
disabilities under 20 U.S.C. § 1401(3)(A)(i). By contrast, we
refer to a child who has one of the qualifying disabilities under
§ 1401(3)(A)(i) but who has not yet satisfied the "need" prong as
a "child with a disorder" -- distinguished from a "child with a
disability," a term that is defined under the statute to refer to
a child who has satisfied both the first and second prongs of the
eligibility inquiry.

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with a qualifying disorder "needs" special education and related

services as a result of that disorder. Id. § 1401(3)(A)(ii).

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." 34 C.F.R.

§ 300.8(c)(10)(i). A child has an SLD if:

(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 and 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

2 "Reading fluency" -- the area in which Jane is alleged to
have a deficit -- is not defined in the statute or in the agency
regulations. The Does define the term as "the combination of the
rate and accuracy with which one can decode words in passages."
The Cape Elizabeth School District does not object. We find this
definition appropriate and rely on it for reference. See also Br.
of Int'l Dyslexia Ass'n et al. as Amici Curiae at 9 (defining
"reading fluency" as "the ability to read a text quickly,
accurately, and with proper expression"); James S. v. Town of
Lincoln, No. CA 11-236 ML, 2012 WL 3645339, at *3 (D.R.I. Aug. 23,

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 (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.

Id. §§ 300.309(a)(1), (a)(2)(i)-(ii).3

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.

20 U.S.C. § 1401(3)(A)(ii). "Special education" is defined as

2012) (understanding "reading fluency" under the IDEA as a
measurement of "speed and accuracy").

3 It is undisputed that Jane meets the second criterion for a
cognizable SLD because she "exhibits a pattern of strengths and
weaknesses" in the relevant performance and achievement areas. 34
C.F.R. § 300.309(a)(2)(ii). We also note that there is a third
criterion for an SLD, which provides that "findings under [the
first two criteria]" must not be "primarily the result of (i) A
visual, hearing, or motor disability, (ii) Mental retardation,
(iii) Emotional disturbance, (iv) Cultural factors, (v)
Environmental or economic disadvantage, or (vi) Limited English
proficiency." Id. § 300.309(a)(3). The parties have not addressed
this requirement, however, and we assume that it has been met.

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"specially designed instruction, at no cost to parents, to meet

the unique needs of a child with a disability,

including . . . instruction conducted in the classroom, in the

home . . . and in other settings," as well as "instruction in

physical education." Id. § 1401(29). "Related services" means

"transportation, and such developmental, corrective, and other

supportive services (including . . . psychological services,

physical and occupational therapy, . . . medical services . . . )

as may be required to assist a child with a disability to benefit

from special education." Id. § 1401(26)(A). Neither the statute

nor the agency regulations specifies the object or the scope of

the need determination.

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

id. § 1414(d)(1)(B) -- concluded that Jane was eligible to receive

special education under the IDEA as a student with an SLD based on

her deficiency in reading fluency. Jane's IEP team thus developed

an Individualized Education Program ("IEP") to provide Jane with

4
We draw these facts primarily from the hearing officer's
findings.

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specialized instruction to improve her reading fluency skills. As

a bright, hard-working student with dedicated parents, Jane

improved her reading skills over the years, and she continued to

perform well in school, as well as on standardized tests.

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, Jane'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

5According to the hearing officer, reading fluency probes
are "'cold reads,' in which the [child] [is exposed to the reading
prompt for the first time when she [i]s asked to read it."

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(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

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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 disagree with the IEP

team's eligibility determinations can file a complaint for an

"impartial due process hearing" conducted by a local or state

educational agency official, i.e., a "hearing officer." 20 U.S.C.

§ 1415(f); see 34 C.F.R. § 300.507(a)(1). The hearing officer's

decision is then subject to judicial review. See 20 U.S.C.

§ 1415(i)(2). Under the subheading "Right to bring civil action,"

the IDEA provides that a reviewing court: "(i) shall receive the

records of the administrative proceedings; (ii) shall hear

additional evidence at the request of a party; and (iii) basing

its decision on the preponderance of the evidence, shall grant

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such relief as the court determines is appropriate." Id.

§ 1415(i)(2)(C).

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 20

U.S.C. § 1415(i)(2)(C)(ii), the Does submitted post-hearing

"additional evidence" that consisted of an affidavit attesting to

their observations of Jane's continuing struggles with reading

fluency. The affidavit also contained the results of the more

recent reading fluency probes, which the Does argued were more

reflective of Jane's reading fluency deficit than the older reading

fluency probes that were before the hearing officer. The district

court noted that the reading fluency probes received "scant

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consideration" from the hearing officer. It then largely adopted

the administrative officer's findings regarding Jane's performance

on reading fluency measures. The court concluded -- in affirmance

of the hearing officer's (and the IEP team's) decision -- that

Jane did not have an SLD and thus was not eligible to receive

special education under federal and state laws. The district court

did not address whether Jane needed special education under the

second prong of the eligibility inquiry. This appeal followed.

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

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"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." 34 C.F.R. § 300.309(a)(1). "Reading fluency

skills" is one of the eight areas listed, along with "basic reading

skill" and "reading comprehension." Id. § 300.309(a)(1)(iv), (v),

(vi).

6
We note that the definitions of most other disabilities
listed in 20 U.S.C. § 1401(3)(A)(i) -- the first prong of the
"child with a disability" definition -- contain the requirement
that the disability "adversely affect[] a child's educational
performance." 34 C.F.R. § 300.8(c)(1), (3)-(5), (8)-(9), (11)-
(13). Accordingly, courts addressing other disabilities that
contain the "adversely affect" requirement have considered a
child's academic record under that phrase. See Mr. I. ex rel.
L.I., 480 F.3d at 11; J.D. ex rel. J.D. v. Pawlet Sch. Dist., 224
F.3d 60, 65-67 (2d Cir. 2000). The definition of "specific
learning disability," by contrast, does not include the "adversely
affect" language. 34 C.F.R. § 300.8(c)(10). The parties have not
addressed this distinction among the disability terms, nor do we
discern here an explanation for the omission of the "adversely
affect" language in the SLD definition. Hence, while we hold in
this case that a child's academic performance may be a factor where
it is relevant to his or her area of deficiency, we do not base
our interpretation on the language of the SLD definition.

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 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. Id. § 300.309(a)(1). There is a separate

question, however, regarding what assessments and measures may be

considered in determining a reading fluency deficit. In answering

this question, we conclude that a child's overall academic

performance may be a relevant factor, insofar as it serves as a

fair proxy of his or her reading fluency skills.

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

7
We find that the agency regulations and letters cited herein
command deference in light of the ambiguities in the statutory
provisions governing the eligibility inquiry. See, e.g., 20 U.S.C.
§ 1401(3)(A). In Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,
467 U.S. 837, 843 (1984), the Supreme Court held that, "if the
statute is silent or ambiguous with respect to the specific issue,
the question for the court is whether the agency's answer is based
on a permissible construction of the statute." Indeed, such
deference is warranted even when an agency expresses its view
through an informal means, rather than by exercising its rulemaking
authority. See Chase Bank USA N.A. v. McCoy, 562 U.S. 195, 208-
09 (2011); Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d
884, 894 (9th Cir. 1995) (extending Chevron deference to a letter
because the statutory interpretation contained in that letter is
"based on a permissible construction of the existing statutory
language"). Moreover, an agency interpretation that does not
qualify for Chevron deference may still "merit some deference
whatever its form, given the 'specialized experience and broader
investigations and information' available to the agency." United
States v. Mead Corp., 533 U.S. 218, 234 (2001) (quoting Skidmore

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agency has stated, for instance, that the eligibility inquiry must

"[d]raw upon information from a variety of sources, including

aptitude and achievement tests, parent input, and teacher

recommendations, as well as information about the child's physical

condition, social or cultural background, and adaptive behavior."

34 C.F.R. § 300.306(c)(1)(i); see also id. § 300.304(b)(1) (noting

that the evaluation of whether the child is a child with a

disability must "[u]se a variety of assessment tools and strategies

to gather relevant functional, developmental, and academic

information about the child"). Additionally, in responding to a

comment suggesting that the eligibility determinations should

include "standardized, individualized testing (not just criterion-

based testing or functional assessments)," the agency wrote,

"Nothing in the [IDEA] or . . . regulations would preclude the

eligibility group from considering results from standardized tests

when making eligibility determinations." Assistance to States for

the Education of Children With Disabilities and Preschool Grants

for Children With Disabilities, 71 Fed. Reg. 46,540, 46,651 (Aug.

14, 2006).

v. Swift, 323 U.S. 134, 139 (1944)). Here, we find the agency
interpretations in the regulations and letters persuasive, even
under the lesser Skidmore deference, and hence do not address the
particular level of deference afforded to these materials. See
E.M. ex rel. E.M. v. Pajaro Valley Unified Sch. Dist., 758 F.3d
1162, 1174 (9th Cir. 2014).

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 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),"

34 C.F.R. § 300.311(a), (a)(2) -- which suggests that the broad

base of measures identified in § 300.306(c)(1) apply to identifying

an SLD. Moreover, a related regulation states that an SLD

determination must take into account "information from an

observation in routine classroom instruction and monitoring of the

child's performance" before the child is referred for an evaluation

for eligibility purposes, or, similarly, "observation of the

child's academic performance in the regular classroom" after the

child has been referred for such evaluation. Id. § 300.310(b).

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." Id. § 300.500(b) (July 1,

1998). The language excluding such "basic tests" and "procedures,"

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however, which would seemingly exclude Jane's grades and NECAP and

NWEA scores from the first prong inquiry, was removed from the

definition of "evaluation" by the following year, see id.

§ 300.500(b)(2) (Mar. 12, 1999), and does not appear in the current

version of the regulation in effect, see id. § 300.500 (Oct. 13,

2006). "A change of [statutory] language is some evidence of a

change of purpose." Johnson v. United States, 225 U.S. 405, 415

(1912). The changes in the definition of a relevant term in the

regulation hence reinforce our understanding that an SLD

determination may consider a broader range of assessments,

including a child's school grades, classroom performance, and

standardized test scores, even when they are not tailored to

measure the specific area of the child's deficiency. See generally

Assistance to States for the Education of Children With

Disabilities and the Early Intervention Program for Infants and

Toddlers With Disabilities, 64 Fed. Reg. 12,406, 12,410 (Mar. 12,

1999) (noting that the definition of "'evaluation'

(§ 300.500(b)(2)) has been revised by deleting the last sentence

of the definition, to ensure that evaluations may include a review

of a child's performance on a test or procedures used for all

children in a school, grade, or class").

We add two important qualifications. First, because the

text of 34 C.F.R. § 300.309(a)(1) makes clear that a deficiency in

"one or . . . more of the following areas," including reading

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fluency, is sufficient to support an SLD, the consideration of a

child's academic measures under the first prong requires

consideration of the nexus between those academic measures and the

area of the child's deficiency. See also id. § 300.310(a)

(providing that a child must be "observed in the child's learning

environment (including in regular classroom setting) to document

the child's academic performance and behavior in the areas of

difficulty" (emphasis added)). That is to say, Jane's straight-A

grades and NECAP and NWEA scores -- whose relevance to her reading

fluency ability is not readily apparent8 -- may be considered in

determining her reading fluency deficit only insofar as they are

indicative of her fluency skills.9 See, e.g., Ms. H. ex rel. T.H.

v. Montgomery Cty. Bd. of Educ., No.2:10cv247-WHA-SRW, 2011 WL

666033, at *11 (M.D. Ala. Feb. 14, 2011) (noting that "the evidence

of low [school] grades leans in [the child's] favor" in identifying

8
The hearing officer observed, for instance, that NWEA "is
untimed and has multiple choice answers, so it is not the kind of
test that would normally pose a challenge for the student's areas
of weakness."

9The Does contend that a child's generalized academic
measures, such as school grades and NECAP and NWEA scores, do not
assess reading fluency. We are ill-equipped, however, to make
what appears to be a clinical determination that such academic
measures could never reflect a reading fluency deficit or
deficiency in any particular area. Hence, we rely instead on the
regulatory provisions that allow for broader academic performance
to be considered in the eligibility inquiry and SLD determination,
and leave it to the parties to prove, through expert testimony and
other relevant evidence, the nexus between generalized academic
measures and the child's area of deficiency.

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an SLD "only to the extent that the low grades may have been caused

by a[n] [SLD]").

The capacious interpretation of § 300.309(a)(1) adopted

by the district court is incorrect. In relying on Jane's overall

academic record under the first prong, the district court reasoned

that, "[b]ecause § 300.309(a) . . . assign[s] to the IEP team the

task of determining whether a student 'achieves adequately' for

her age or meets 'State-approved grade-level standards,'

consideration of grades and state standardized test scores is

appropriate," without requiring any proof of the relevance of those

measures to Jane's reading fluency skills. The phrase "achieve[s]

adequately," however, is modified by "in one or more of the

following areas" in § 300.309(a)(1), meaning that any such adequate

achievement must be in the area of the student's deficiency --

here, reading fluency.

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, and has performed well on state

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standardized exams. On the other hand, Jane has received average-

range or arguably below-average scores on an array of tests that

were administered specifically to measure her reading fluency,

such as GORT-5, TOWRE-2, the Nelson Denny Test, and the reading

fluency probes. The question hence arises whether and to what

extent Jane's generalized academic measures -- if proven to be a

fair indicator of her reading fluency ability -- may counteract

the more negative results of her specific reading fluency

assessments.

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 34 C.F.R.

§ 300.309(a)(1), including and particularly reading fluency. 71

Fed. Reg. at 46,652; see also id. ("[D]etermining eligibility for

special education and related services cannot be based on any

single measure or assessment as the sole criterion for determining

whether a child is a child with a disability."). The emphasis on

a holistic inquiry in identifying an SLD has particular salience

in this case because reading fluency was added to the list of

disabilities in part to identify students who, like Jane, excel

academically but may have an SLD based on a fluency deficit. In

response to commenters who "recommended removing reading fluency

from the list in § 300.309(a)(1)," the agency defended its decision

to include reading fluency as a category, observing that

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"[i]ncluding reading fluency in the list of areas to be considered

when determining whether a child has an SLD makes it more likely

that a child who is gifted and has an SLD would be identified."

Id. at 46,652; see also Letter from Alexa Posny, Acting Director

of the Office of Special Education Programs, U.S. Department of

Education, to Anonymous, U.S. Dep't of Educ. (Jan. 13, 2010)

(hereinafter, "Letter to Anonymous") (noting that, while "[t]he

IDEA is silent regarding 'twice exceptional' or 'gifted

students[,]' . . . [i]t remains the Department's position that

students who have high cognition" but struggle with, for instance,

"reading and math fluency" may still satisfy the two prongs of the

eligibility inquiry).

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 34 C.F.R.

§ 300.304(c)(2) (emphasizing a holistic inquiry by requiring

"assessments and other evaluation materials [to] include those

tailored to assess specific areas of educational need and not

merely those that are designed to provide a single intelligence

quotient"). This is especially true when the child's generalized

academic performance contradicts the results of his or her specific

reading assessments. Indeed, in the inevitable weighing of factors

- 21 -
in discerning a reading fluency deficit, the hurdle is higher for

generalized academic measures to provide a counterweight. The

parties agree that assessments, such as GORT-5, TOWRE-2, and the

reading fluency probes, measure reading fluency, and they were

administered to Jane for the specific purpose of determining her

fluency skills. Jane's overall academic performance, by contrast,

is multi-faceted, and was the result, at least in part, of her

high intelligence, hard work, and devoted parents, as well as

accommodations provided by the school, such as extended time for

completing an exam.10

Hence, when the risk is high that a child's overall

academic performance could mask her learning disability because of

innate or ancillary factors specific to that child, and the

regulations included that disability category to mitigate such

masking, see 71 Fed. Reg. at 46,652, generalized academic

measures -- even when proven to be a fair indicator of the child's

learning disability -- must have high probative value to outweigh

specific disability measures in identifying an SLD. See 34 C.F.R.

10 These accommodations are not part of special education or
related services, and neither party has argued otherwise. We note,
moreover, that certain accommodations identified by the Does would
likely continue to be available to Jane even without special
education. As the hearing officer noted, the school district
"explained that even without special education, [Jane] could have
reasonable accommodations such as extended time on assignments and
assessments, and offered to meet with [the Does] to discuss the
possibility of an intervention plan."

- 22 -
§ 300.304(b)(3) (noting that evaluation for eligibility purposes

must "[u]se technically sound instruments that may assess the

relative contribution of cognitive . . . factors" (emphasis

added)). We do not decide, however, the precise weight that must

be afforded to those relevant academic measures in the abstract.

In addressing other categories of disorders under 20 U.S.C.

§ 1401(3)(A)(i), the U.S. DOE has cautioned that a disability must

be determined "on a case-by-case basis, depending on the unique

needs of a particular child and not based only on discrepancies in

age or grade performance in academic subject areas." Letter from

Alexa Posny, Director of the Office of Special Education Programs,

U.S. Department of Education, to Catherine D. Clarke, Director of

Education and Regulatory Advocacy, American Speech and Hearing

Association, U.S. Dep't of Educ. (Mar. 8, 2007). The same is true

of an SLD based on a reading fluency deficit. How much weight is

due any given measure in identifying a reading fluency deficit

must depend on the unique circumstances of the child. Thus, with

the guidance provided herein, we leave it to the IEP team, the

hearing officer, or the district court to determine, in the first

instance and on an individual basis, the precise weight of any and

all relevant measures in conducting the first prong inquiry.

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

- 23 -
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

(relatively) 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

administrative decision, as indicated by the court's references to

- 24 -
the term "appeal" in its order, when it is, in fact, a "civil

action."

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 review 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

- 25 -
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."

- 26 -
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 to identifying an SLD. While the district court

should afford varying degrees of deference to the hearing officer

depending on the persuasiveness of the administrative finding, see

Lenn, 998 F.2d at 1087, the duty of an "involved oversight"

requires that the court make an independent judgment on the

relevance (or credibility) of the measures in dispute, S. Kingstown

Sch. Comm., 773 F.3d at 349. Relatedly, the court seems to have

addressed the hearing officer's purported treatment of GORT-5 and

the Nelson Denny Test only in the context of discussing whether

Jane meets the state law requirement on the first prong of the

eligibility inquiry, see infra Part III (discussing the state law

standards), not in determining whether she has a reading fluency

- 27 -
deficit under the federal standard, see 34 C.F.R. § 300.309(a)(1);

20 U.S.C. § 1401(3)(A)(i). On remand, therefore, the court should

exercise independent judgment in assessing the relevance of GORT-

5 and the Nelson Denny Test in identifying a reading fluency

deficit under federal law.11 See Town of Burlington, 736 F.2d at

791.

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. 20 U.S.C. § 1415(i)(2)(C). Prior

to the district court's hearing, the Does submitted additional

evidence in the form of an affidavit attesting to Jane's continuing

struggles with reading fluency. Specifically, the affidavit

contained the results of Jane's more recent reading fluency probes,

11
For instance, if the district court determines that the
Nelson Denny Test need not be excluded based on the credibility of
Doiron, the court may have to resolve the dispute over the
relevance of this measure to reading fluency. As the district
court observed in explaining the factual background, there was a
dispute between the parties over the validity of the Nelson Denny
Test as a reading fluency measure because it "only counts the
number of words read, not accuracy." The hearing officer does not
appear to have resolved this dispute, instead finding that,
"[a]lthough reading fluency is an area of weakness for [Jane], it
did not prevent her from earning consistently excellent grades or
from doing well on Maine standardized tests."

- 28 -
which the Does argued were more accurate than the earlier ones

that were before the hearing officer. The Does asserted that the

recent fluency probes, when combined with Jane's poor performance

on certain fluency tests, demonstrated her overall deficiency in

reading fluency.

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 submitted by the Does. Indeed, courts are required to make

"bounded, independent decisions -- bounded by the administrative

record and additional evidence, and independent by virtue of being

- 29 -
based on a preponderance of the evidence before the court." Town

of Burlington, 736 F.2d at 791. Thus, the district court erred in

dismissing both the old and new reading fluency probes on account

of the hearing officer's failure to address them. See id. at 790-

92 (observing that the post-hearing evidence may "bring[] the court

up to date on the child's progress" and should be considered if

"additional"); see also E.M. ex rel. E.M. v. Pajaro Valley Unified

Sch. Dist., 652 F.3d 999, 1006 (9th Cir. 2011) (concluding that

the district court applied an inappropriate standard for

determining admissibility of post-hearing evidence).

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

- 30 -
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 when 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

- 31 -
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 suggest

on appeal, however, that a reading fluency deficit can by itself

satisfy both prongs of the eligibility inquiry, and that Jane's

academic performance may not be considered in assessing her need

for special education.

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. 20 U.S.C. § 1401(3)(A)(ii). The ambiguity in the need

inquiry (and hence the dispute here) arises from the incompleteness

in this definitional statement. By its own terms, the need

provision seems to be missing a prepositional phrase that would

modify "special education and related services," or, to put it

descriptively, what the child needs special education for. Id.

The Does contend that the inquiry should focus narrowly on whether

a child needs special education to improve the skills specific to

12
While the hearing officer determined that Jane did not need
special education, the officer addressed the need issue only
briefly and as an alternative ground for ineligibility, having
found -- as did the school -- that Jane did not have a reading
fluency deficit.

- 32 -
the disability, here, a reading fluency deficit. The school

district, by contrast, contends that the need inquiry should

examine broadly whether a child requires special education to

benefit from the school curriculum.

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

categorically 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.

20 U.S.C. § 1401(3)(A)(ii). That is, a child who needs only

accommodations or services that are not part of special education

13 The writing judge believes that an interpretation of the
need inquiry is necessary in this case and hence expresses his
views in a separate concurring opinion. See infra.

- 33 -
to fulfill the objective of the need inquiry does not "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

officer's determination that Jane did not satisfy MUSER's

processing disorder requirement under the first prong inquiry.

Viewing its federal ruling as an adequate basis for denying

eligibility, however, the district court did not address the

- 34 -
separate argument advanced by the Does that the processing disorder

requirement is overly restrictive and hence incompatible with

federal law.

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 briefly

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

- 35 -
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 20 U.S.C. § 1401(3)(A)(ii). Regardless of

the approach it adopts, consideration of Jane's academic record is

not categorically barred under the need assessment any more than

- 36 -
it is categorically barred under the first prong inquiry, so long

as it was determined to be relevant in discerning her reading

fluency deficit.

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 issues on remand, the court can stay the proceedings and remand

to the hearing officer to make relevant determinations.

Costs are awarded to appellants.

So ordered.

-Concurring Opinion Follows-

- 37 -
 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 1401(3)(A)(ii) of the

IDEA provides that a child determined to have one of the qualifying

disorders under the first prong must also, "by reason thereof,"

"need[] special education and related services" to be eligible for

special education. 20 U.S.C. § 1401(3)(A)(ii). The Does argue

that the need inquiry should determine whether a child needs

special education to remediate the underlying disability, whereas

the school district argues that the need inquiry should determine

- 38 -
whether a child needs special education to benefit from the school

curriculum.

"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

- 39 -
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 with her

teachers." Id. (internal quotation marks omitted). The court

also acknowledged that "she performs better than the average child

in her class and is advancing easily from grade to grade." Id.

(internal quotation marks omitted). Despite these achievements,

however, the district court found that Amy "underst[ood]

considerably less of what goes on in class than she could if she

were not deaf" and hence was "not learning as much, or performing

as well academically, as she would without her handicap." Id.

(internal quotation marks omitted). That "disparity between Amy's

achievement and her potential" led the district court to conclude

that her IEP -- without also providing an interpreter in her

classes -- fell short of the "free appropriate public education"

to which she was entitled. Id. at 185-86. Indeed, defining "free

appropriate public education" as "an opportunity to achieve [the

child's] full potential commensurate with the opportunity provided

to other children," the district court reasoned that evaluating

- 40 -
the sufficiency of special education "requires that the potential

of the [child with a disability] be measured and compared to his

or her performance, and that the resulting differential or

shortfall be compared to the shortfall experienced by [children

without disabilities]." Id. at 186 (internal quotation marks

omitted).

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 20 U.S.C. § 1400(d)(1)(A) (defining the

purposes of the IDEA as, inter alia, "ensur[ing] that all children

with disabilities have available to them a free appropriate public

education"). As the Court explained it, "the requirement that a

State provide specialized educational services to [children with

disabilities] generates no additional requirement that the

services so provided be sufficient to maximize each child's

potential 'commensurate with the opportunity provided other

14
Rowley refers to the Education of the Handicapped Act. See
458 U.S. at 179. This Act was renamed the Individuals with
Disabilities Education Act in 1990. See Education of the
Handicapped Act Amendments of 1990, Pub. L. No. 101-476, 104 Stat.
1103 (1990).

- 41 -
children.'" Rowley, 458 U.S. at 198 (quoting the district court's

opinion). Instead, what Congress sought to provide under the IDEA

is education "sufficient to confer some educational benefit upon

[the child with a disability]." Id. at 200. That is to say,

instead of "an opportunity to achieve [the child's] full

potential," id. at 186, the IDEA ensures "a basic floor of

opportunity," id. at 201 (internal quotation marks omitted), under

which a child with a disability is given access to "the regular

classrooms of a public school system," id. at 203. The sufficiency

of the education provided in the classroom, the Court further

explained, is measured by "the educational progress of the child"

based on "[r]egular examinations[,] . . . grades[,] . . . and

yearly advancement to higher grade levels." Id. at 202-03.

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.

Indeed, if an important determinate of the adequacy of special

education is the extent to which a child is receiving educational

benefits in "the regular classrooms of a public school system,"

id. at 203, it makes little sense to exclude such a consideration

from determining whether the child needs special education in the

first instance. As the agency has clarified, once "a determination

is made that a child has a disability and needs special education

- 42 -
and related services, an IEP must be developed for the child." 34

C.F.R. § 300.306(c)(2). The evaluation procedures used in

assessing that need (and more broadly the eligibility) are also

used in assessing the adequacy of special education or an IEP.

See 20 U.S.C. § 1414(b)(2)(A)(i), (ii) (noting that the local

educational agency shall "use a variety of assessment tools and

strategies . . . that may assist in determining" "whether the child

is a child with a disability" and "the content of the child's

[IEP]"); 34 C.F.R. § 300.304(b)(1)(i), (ii) (same); see also 20

U.S.C. § 1414(c)(B) (iii), (iv) (prescribing the same evaluation

process for determining "whether the child needs special education

and related services" and "whether any additions or modifications

to the special education and related services are needed to enable

the child to meet the measurable annual goals set out in the

[IEP]"); 34 C.F.R. § 300.305(a)(2)(iii), (iv) (same).

Additionally, as Rowley demonstrates, an inquiry into the

sufficiency of special education also encompasses (or is capable

of encompassing) an examination into the child's "need." See 458

U.S. at 185 (reciting the school's decision that Amy Rowley did

not "need" an interpreter, and the independent examiner's

determination that an interpreter was "not necessary").

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.,

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513 U.S. 561, 569 (1995)), and "fit, if possible, all parts into

an harmonious whole," id. (quoting FTC v. Mandel Brothers, 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 of 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, 20 U.S.C. § 1401(3)(A)(ii), and that special education

must be designed "to meet the unique needs of [the] child with a

disability," id. § 1401(29) (emphasis added). Thus, in accordance

with the applicable statutory canon and the text of the relevant

statute, I understand the need inquiry to assess whether a child

with a disorder needs special education to remediate the underlying

disability, insofar as the disability impedes the child's

"educational progress" in school or, to put it differently, the

"educational benefits" that a child derives from school.

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

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to eligible children is "appropriate." 458 U.S. at 203; see also

34 C.F.R. § 300.305(a)(2)(ii) (providing that evaluations include

data necessary to determine "the present levels of academic

achievement and related developmental needs of the child"). So,

too, is a child's overall academic performance in determining his

or her need for specialized instruction. Citing Rowley, the Fifth

Circuit held that a child with an Attention Deficit Hyperactivity

Disorder (cognizable under the first prong) did not "need" special

education because his "passing grades and success on the [state-

wide standardized] test demonstrate[d] academic progress," and

because his "teachers testified that, despite his behavioral

issues, he did not need special education and was achieving social

success in school." Alvin Indep. Sch. Dist. v. A.D. ex rel.

Patricia F., 503 F.3d 378, 383-84 (5th Cir. 2007); see also D.A.

& J.A. ex rel. M.A. v. Meridian Joint Sch. Dist. No. 2, 618 F.

App'x 891, 893 (9th Cir. 2015) (considering the child's academic

performance, as attested to by the school, in determining whether

he needs special education to "benefit from his education" or

"general school curriculum"). District courts and state

educational agencies have likewise relied on a child's academic

performance in conducting the need inquiry.15

15
See Eric H. ex rel. Gary & Frances H. v. Judson Indep. Sch.
Dist., No. Civ.A. SA01CA0804-NN, 2002 WL 31396140, at *2 (W.D.
Tex. Sept. 30, 2002) (concluding that there is no "present need
for special education" because the child exhibited "noted

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 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

improvements in his academic performance and social
interactions"); Grant ex rel. Grant v. St. James Parish Sch. Bd.,
No. CIV.A.99-3757, 2000 WL 1693632, at *5 (E.D. La. Nov. 8, 2000)
(finding ineligibility for special education where the student's
grades and standardized test results were average or above
average); see also Fenton Area Pub. Sch., 44 IDELR 293, 1495-96
(Mich. SEA Nov. 9, 2005) (holding that a child with dyslexia who
never received a grade lower than a B+ did not need special
education, despite the alleged discrepancy between her potential
and educational performance, because "[s]pecial education is not
designed for students who are already successful in regular
education"); R.B. ex rel. F.B. v. Napa Valley Unified Sch. Dist.,
No. 3:04-cv-00094-BZ, 43 IDELR 188, 863 (N.D. Cal. June 2, 2005)
(observing that the child did not need special education because
she performed above average academically); C.J. ex rel. M.J. &
J.J. v. Indian River Cty. Sch. Bd., No. 02-14047-CIV-MOORE, 39
IDELR 186, 1972 (S.D. Fla. July 6, 2003) (finding ineligibility
where the student's "performance in the classroom indicates that
she requires neither specially designed services nor related
services for her to benefit from education"); In re Hollister Sch.
Dist., 26 IDELR 632, 649 (Cal. June 16, 1997) ("[B]ased on [the
student's] ability to receive commendable grades in the absence of
special education services, . . . the ability to show progress on
measures of academic achievement, and to pass successfully from
grade to grade, . . . [the] student did not require [special
education].").

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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, 2000. 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 school system"

as receiving "appropriate" education. Id. at 203 n.25. Hence, I

acknowledge that, while a child may not establish a need for

special education based solely on the disparity between her

potential and her current academic performance, such a disparity

may be taken into account when the current academic performance is

merely adequate and falls far short of the child's demonstrated

potential. The specifics of such a calibrated inquiry should, of

course, be further developed on a case by case basis.

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

16Similarly, the Rowley Court rejected the comparison of the
disparity between potential and current academic achievements of
a child with a disability to the disparities experienced by
children without disabilities, not the consideration of such a
disparity in the first place. See 458 U.S. at 186, 189-90.

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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,

17 This interpretation of "educational benefits" and
"educational progress" dispels the Does' concern that
consideration of a child's academic record would lead to an
"absurd[]" outcome where an intelligent child with a physical
disability would be deemed not to need special education based
solely on the fact that he performs well in academic classes. I
reiterate that the construction of the need inquiry provided herein
does not treat school grades or standardized test scores as
decisive in the eligibility determinations.

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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., 34 C.F.R. § 300.306(c)(1)(i) (noting that

the eligibility determinations must "[d]raw upon information from

a variety of sources, including aptitude and achievement tests,

parent input, and teacher recommendations, as well as information

about the child's physical condition, social or cultural

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background, and adaptive behavior"). The emphasis on an inclusive

inquiry applies to the need assessment as it does to an SLD

determination. See 20 U.S.C. § 1414(c)(1)(B)(i), (iii) (presuming

that the same evaluation data would be used for determining both

whether the child has a disability and "whether the child needs

special education and related services"); 34 C.F.R.

§ 300.304(c)(6) (instructing that the eligibility inquiry should

be "sufficiently comprehensive to identify all of the child's

special education and related services needs, whether or not

commonly linked to the disability category in which the child has

been classified" (emphasis added)).

In construing the scope of the need inquiry broadly, I

do not discount the meaning of "need" in the second prong inquiry.

20 U.S.C. § 1401(3)(A)(ii). Indeed, the panel is in agreement

that even a child who performs below average academically or has

social or behavior problems as a result of his or her disorder may

not need specialized instruction to make educational progress in

school, if that child can make such progress with certain

accommodations that are not part of special education. See supra

Part II.C.

* * *

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

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necessary and appropriate for the reasons already stated. I,

therefore, add this concurrence.

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