Michael P. v. Department of Education

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MICHAEL P.; ELIZABETH G., as 
Guardian Ad Litems of Courtney
G., an incompetent minor;
No. 09-16078
COURTNEY G., an incompetent
minor, D.C. No.
Plaintiffs-Appellants,  1:08-cv-00146-
HG-BMK
v.
OPINION
DEPARTMENT OF EDUCATION,
STATE OF HAWAII,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Hawaii
Helen Gillmor, Senior District Judge, Presiding

Argued and Submitted
June 18, 2010—Honolulu, Hawaii

Filed September 8, 2011

Before: Betty B. Fletcher, Harry Pregerson, and
Richard R. Clifton, Circuit Judges.

Opinion by Judge Pregerson;
Dissent by Judge Clifton

17023
17026 MICHAEL P. v. DEPARTMENT OF EDUCATION

COUNSEL

Carl M. Varady, Honolulu, Hawaii, for the plaintiffs-
appellants.

Rebecca A. Copeland, Department of Education, State of
Hawaii, Honolulu, Hawaii, for the defendant-appellee.

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 Hear-
ings Officer’s (“Hearing Officer”) conclusion that the Hawaii
Department of Education (“Hawaii DOE”) properly found
Courtney ineligible for services under the Individuals with
Disabilities Education Act (“IDEA”). Hawaii DOE deter-
mined that Courtney did not qualify for special education
under the “specific learning disability” classification because
1
Courtney’s grandfather, Michael P., filed a complaint individually and
as Guardian ad Litem of Courtney, appealing the Hearing Officer’s deci-
sion. The district court granted leave to amend the complaint to substitute
Courtney’s mother as Guardian. The district court ultimately dismissed
Michael P. from the lawsuit for lack of standing. This determination is not
at issue on appeal.
 MICHAEL P. v. DEPARTMENT OF EDUCATION 17027
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 exclu-
sively 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 educa-
tion 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 pro-
tected.” Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484, 2491
(2009) (internal marks omitted) (citing Sch. Comm. of Bur-
lington v. Dep’t of Educ. of Mass., 471 U.S. 359, 367 (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 disabili-
ty” classification, a student must show that she (1) has “a dis-
order 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, includ-
ing 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” clas-
sification by showing a “severe discrepancy” between actual
achievement and intellectual ability. See Dixie Snow Huefner,
17028 MICHAEL P. v. DEPARTMENT OF EDUCATION
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 discrepan-
cy,” but rather, left the matter to the discretion of each state.
Perry A. Zirkel, The Legal Meaning of Specific Learning Dis-
ability 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). Alter-
natively, if standardized tests were invalid or did not reveal a
statistically significant deviation, Hawaii permitted consider-
ation 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 indi-
cator 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, Accommodat-
ing Mental Disabilities in Higher Education: A Practical
Guide to ADA Requirements, 32 J.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 intelli-
gence. 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.
 MICHAEL P. v. DEPARTMENT OF EDUCATION 17029
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 expres-
sion, listening comprehension, written expression, basic read-
ing 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 dis-
tricts to use an alternative model to determine whether a stu-
dent 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 spe-
cific learning disability, a local educational agency may use
a process that determines if the child responds to scientific,
research-based intervention . . . ”). Moreover, legislative his-
tory 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 Dis-
abilities and the Conflicting Trends in Legislation Affecting
Learning Disabled Students, 40 Creighton L. Rev. 229, 259
(2007). A student who does not progress adequately after
exposure to increasingly intensive and individualized instruc-
tion is deemed eligible for special education. See id.; see also
17030 MICHAEL P. v. DEPARTMENT OF EDUCATION
Weber, supra 128. “Thus, the definition of disability and the
identification of learning disabled students become linked to
instruction.” Townsend, supra at 259. Many experts favor the
“response to intervention model” because it identifies students
with a “specific learning disability” before academic failure
occurs, whereas the “severe discrepancy model” takes a “wait
to fail” approach. See Weber, supra at 131-33; H.R. Rep. No.
108-77, at 112 (2003).

The United States Department of Education issued regula-
tions implementing the 2004 amendments to IDEA on August
14, 2006, which became effective on October 13, 2006. See
Assistance to States for the Education of Children with Dis-
abilities and Preschool Grants for Children with Disabilities,
71 Fed. Reg. 46540, 46786 (Aug. 14, 2006) (to be codified at
34 C.F.R. § § 300.307). The amended regulations provide that
an evaluation team may find a child eligible for special educa-
tion under the “specific learning disability” classification if
the child demonstrates (1) inadequate achievement relative to
age or grade level standards; and (2) insufficient progress
after intervention, or a pattern of strengths and weaknesses in
achievement relative to age, grade-level standards, or intellec-
tual development, which indicates a “specific learning disabili-
ty.”2 See 34 C.F.R. § 300.309(a); see also Huefner, supra at
10-11. The regulations prohibit states from requiring school
districts to use the “severe discrepancy model” and compel
states to allow school districts to use the “response to inter-
vention model.” See 34 C.F.R. § 300.307(a)(1).

Hawaii DOE did not conform its regulations to federal law
until November 23, 2009—more than three years after the
federal regulations took effect. These new regulations permit
2
These regulations incorporate the “response to intervention model” as
a possible way to identify a child eligible for special education under the
“specific learning disability” classification.
 MICHAEL P. v. DEPARTMENT OF EDUCATION 17031
a student to qualify for special education absent a “severe dis-
crepancy” between actual achievement and intellectual ability.3

B. Factual Background

From the second grade in 2003 until the beginning of the
sixth grade in 2007, Courtney attended a public elementary
school in Hawaii. During this period, Courtney struggled with
reading and consistently read below grade level on both stan-
dardized and informal reading tests. From the second through
the fourth grade, Courtney was placed in the “at risk” cate-
gory according to a standardized literacy test. Despite daily
reading practice at home with her grandfather, small group
reading intervention at school, and private tutoring at her
mother’s expense, she still remained in the “at risk” category.
By the middle of her fourth grade year, Courtney was 2.4
grade levels behind in reading.

1. Hawaii DOE Assessments

Towards the end of Courtney’s fourth grade year, Court-
ney’s mother and grandfather requested a special education
evaluation meeting with Hawaii DOE. At the meeting, Court-
ney’s mother and grandfather requested that Hawaii DOE use
the “response to intervention model” to determine whether
Courtney had a “specific learning disability.” Although
Hawaii DOE agreed to an in-depth achievement evaluation of
Courtney’s abilities, Hawaii DOE refused to use the “re-
sponse to intervention model.”

Hawaii DOE’s “in-depth achievement evaluation” con-
3
The amended Hawaii regulation provides that an evaluation team may
determine that a student has a “specific learning disability” if the student
demonstrates (1) inadequate achievement or a severe discrepancy between
intellectual ability and academic achievement, and (2) insufficient prog-
ress or a pattern of strengths and weaknesses relevant to identifying a
“specific learning disability”. See Haw. Code R. § 8-60-41(a).
17032 MICHAEL P. v. DEPARTMENT OF EDUCATION
sisted of a classroom reading assessment report, conducted by
a special education resource teacher for the school district,
and a formal academic assessment, conducted by a “psycho-
logical examiner.” Both tests were conducted at the end of
Courtney’s fourth grade year. According to the classroom
assessment report, “Courtney struggles as a reader, [is] able
to decode at about the [third to fourth] grade level but com-
prehends at about the [second to third] grade level.” The
report also noted that Courtney needed to improve her oral
fluency skills, which were at the second to third grade level.
The formal academic assessment indicated that Courtney’s
overall academic performance was consistent with the “Aver-
age to Below Average” range, and that her weakest skills
related to reading and math fluency.

2. June 7, 2006, Eligibility Meeting

At the end of Courtney’s fourth grade year, the evaluation
team4 convened to determine whether Courtney was eligible
for special education. After considering Hawaii DOE’s
assessments and an IQ test that indicated Courtney had a low-
average IQ, Hawaii DOE determined that Courtney was not
eligible for special education because no “severe discrepancy”
existed between Courtney’s IQ and her achievement on stan-
dardized tests. Courtney’s mother and grandfather disputed
Hawaii DOE’s eligibility determination and requested that
Hawaii DOE use the “response to intervention” model.
Hawaii DOE never applied this alternative model to deter-
mine whether Courtney was eligible for special education.
4
At a minimum, federal regulations require evaluation teams to include
the child’s parents, the child’s regular teacher, and at least one person
qualified to conduct diagnostic tests of children, such as a school psychol-
ogist, speech-language pathologist, or remedial reading teacher. 34 C.F.R.
§ 300.308. At Courtney’s meeting, the following individuals participated:
the principal, psychological examiner, school psychologist, student ser-
vices coordinator, resource teacher, several general education teachers,
and Courtney’s mother and grandfather.
 MICHAEL P. v. DEPARTMENT OF EDUCATION 17033
3. Dr. Murphy-Hazzard’s Neuropsychological
Evaluation

In June 2006, Courtney’s mother requested another special
education evaluation of Courtney, including a neuropsy-
chological evaluation and a dyslexia test. Hawaii DOE agreed
to several additional assessments, but rejected these particular
requests. After Courtney’s pediatrician recommended that
Courtney be evaluated for a possible learning disability by a
neuropsychologist, Courtney’s mother, at her own expense,
hired Dr. Peggy Murphy-Hazzard (“Dr. Murphy-Hazzard”), a
licensed clinical psychologist, to perform a neuropsychologi-
cal evaluation of Courtney.

Dr. Murphy-Hazzard evaluated Courtney at the beginning
of her fifth grade year. According to Dr. Murphy-Hazzard’s
tests, Courtney could only read at a third grade level, which
fell in the low-average range, but comprehended at a fourth
grade level, which fell in the average range. Dr. Murphy-
Hazzard also noted that Courtney struggled with word recog-
nition and spelling. Based on these observations, Dr. Murphy-
Hazzard diagnosed Courtney with dyslexia and recommended
immediate remediation and intensive tutoring.5

4. November 29, 2006, Eligibility Meeting

Courtney’s final eligibility meeting occurred after the first
quarter of the fifth grade on November 29, 2006. At the meet-
ing, the evaluation team considered Dr. Murphy-Hazzard’s
report and the results of informal reading tests conducted by
Liza Galindo (“Ms. Galindo”), Courtney’s fifth grade teacher.
5
Dr. Murphy-Hazzard also diagnosed Courtney with “attention deficit
hyperactivity disorder” and “mixed receptive-expressive language disor-
der.” The school psychologist, psychological examiner, and speech pathol-
ogist disputed some of these diagnoses at the eligibility meeting held on
November 29, 2006. Courtney’s eligibility for special education as a result
of these diagnoses are not at issue in this appeal.
17034 MICHAEL P. v. DEPARTMENT OF EDUCATION
These tests showed that Courtney read at the fourth grade
level at the start of the fifth grade. Courtney’s reading did not
significantly improve during the first quarter of the fifth
grade. Despite evidence that Courtney had dyslexia and was
not progressing adequately with regular intervention, Hawaii
DOE once again determined that Courtney was not eligible
for special education because her academic achievement was
commensurate with her ability, as measured by her IQ.6

5. Individualized Dyslexia Tutoring

Approximately one month after Hawaii DOE denied Court-
ney eligibility for special education, Courtney took another
informal reading test. Courtney performed very poorly on
fourth grade level reading comprehension and even struggled
to comprehend at the third grade level. Frustrated with Court-
ney’s lack of progress, Courtney’s mother, at the family’s
expense, hired Dr. Kathy Ferguson (“Dr. Ferguson”), who is
certified to teach dyslexic students, to help Courtney improve
her reading skills.

Dr. Ferguson began tutoring Courtney in January 2007, the
middle of Courtney’s fifth grade year. Based on her initial
assessments, Dr. Ferguson concluded that Courtney had a
“quite severe reading disability” and that she read three grade
levels behind. Dr. Ferguson provided Courtney with weekly
dyslexia reading tutoring, which resulted in significant prog-
ress. By the end of her fifth grade year, Courtney “approached
reading proficiency” according to a standardized state test.
Moreover, Courtney performed better on informal reading
tests, reading a fifth-grade-level passage with 95 percent
6
Dr. Murphy-Hazzard found that Courtney had a higher IQ than indi-
cated by Hawaii DOE’s evaluation. According to Hawaii DOE, Courtney
possessed only low-average intelligence, but Dr. Murphy-Hazzard’s
assessment showed that Courtney possessed average intelligence. Never-
theless, no severe discrepancy existed between Courtney’s achievement
and ability because Courtney’s academic achievement scores were not sig-
nificantly lower than her IQ score.
 MICHAEL P. v. DEPARTMENT OF EDUCATION 17035
accuracy and 50 percent comprehension at the beginning of
the sixth grade. Before Dr. Ferguson’s tutoring, Courtney read
a fourth grade passage with only 90 percent accuracy and 10
percent comprehension.

6. Assets School

Despite Courtney’s progress, Courtney still needed more
help because she was so far behind. According to Dr. Fergu-
son, Courtney needed more intensive special education ser-
vices to address her reading fluency and vocabulary deficits.
In addition to private dyslexia tutoring, Dr. Ferguson recom-
mended that Courtney enroll in Assets School, a private
school for dyslexic and gifted children that incorporates spe-
cialized instruction into its curriculum. At the beginning of
Courtney’s sixth grade year, while administrative proceedings
were still pending, Courtney’s mother withdrew Courtney
from public school and, at her own expense, enrolled Court-
ney at Assets School.7

C. Procedural Background

1. Administrative Proceedings

On March 15, 2007, in the middle of Courtney’s fifth grade
year, Courtney’s mother and grandfather requested a due pro-
cess hearing, alleging that Hawaii DOE improperly denied
Courtney special education services. Courtney’s mother and
grandfather asked the Hearing Officer to determine that
Courtney was eligible for special education under the “spe-
cific learning disability” classification and requested intensive
dyslexia tutoring and remediation, reimbursement for tutoring
and non-DOE evaluations, and compensatory education for
Courtney’s fourth and fifth grade years.
7
The annual tuition for Assets is $15,600, plus $1,600-$1,700 for bus-
ing. Courtney also attended a summer school at Assets, which cost
approximately $1,600.
17036 MICHAEL P. v. DEPARTMENT OF EDUCATION
Courtney’s mother produced four expert witnesses at the
hearings, held on August 29-31 and December 27, 2007.
These witnesses included Dr. Murphy-Hazzard, the clinical
psychologist who performed Courtney’s neuropsychological
evaluation; Dr. Ferguson, a certified teacher of dyslexic stu-
dents who provided Courtney private tutoring; Dr. Patricia
Edelen-Smith, a professor in the Special Education Depart-
ment at the University of Hawaii; and Dr. Peter Dorwick, a
professor of Disability Studies at the University of Hawaii.

These experts consistently testified that the discrepancies
between Courtney’s sub-test scores indicate that she has a
learning disability and that her learning disability depressed
her IQ score. Dr. Ferguson testified from her personal experi-
ence tutoring Courtney that Courtney had a severe reading
disability. Moreover, all the experts testified that Courtney
needed special education to benefit from general education
and avoid academic failure.

Hawaii DOE presented expert testimony by Dr. Abigail
Royston (“Dr. Royston”), a Hawaii DOE school psychologist.
Dr. Royston did not attend any of Courtney’s special educa-
tion eligibility meetings, and unlike several of Courtney’s
mother’s expert witnesses, Dr. Royston had never met Court-
ney. Dr. Royston criticized Dr. Murphy-Hazzard’s neuropsy-
chological evaluation on a number of grounds, but ultimately
agreed that Courtney had dyslexia. Nevertheless, she agreed
with Hawaii DOE’s conclusion that Courtney was not eligible
for special education. Dr. Royston explained that a child with
a disability must need special education to qualify for ser-
vices. She surmised that Hawaii DOE determined that Court-
ney did not need special education because she was
progressing with “regular education intervention.” Dr. Roys-
ton conceded, however, that Courtney should be deemed eli-
gible for special education if her progress during the fifth
grade was attributable to the individualized dyslexia tutoring
she received from Dr. Ferguson. Such tutoring qualifies as
 MICHAEL P. v. DEPARTMENT OF EDUCATION 17037
special education.8 According to Dr. Royston, the critical
question was whether Courtney “had started to make the
advances that we see that she made by the end of the fifth
grade year before she started that [individualized dyslexia
tutoring].”

Hawaii DOE also presented testimony by Ms. Galindo,
Courtney’s fifth grade teacher. Even though Ms. Galindo’s
informal reading tests showed that Courtney read below grade
level at the start of the fifth grade and that Courtney did not
improve by the time of her final eligibility meeting, Ms.
Galindo testified that she did not believe Courtney needed
special education because she observed some progress in the
classroom.

On February 29, 2008, the Hearing Officer issued his deci-
sion, concluding that Hawaii DOE properly determined that
Courtney was ineligible for special education under the “spe-
cific learning disability” classification. Although the Hearing
Officer found that Courtney suffered from dyslexia, he deter-
mined that Courtney did not need special education because
no “severe discrepancy” existed between her actual achieve-
ment and intellectual ability. The Hearing Officer also noted
that Courtney did not need special education because the evi-
dence suggested that she was progressing and had nearly
reached proficiency in reading.

2. District Court Proceedings

The district court affirmed the Hearing Officer’s decision
that Courtney was ineligible for special education under
IDEA. First, the district court determined that the Hearing
Officer’s decision was entitled to deference because the Hear-
ing Officer considered and discussed the available evidence,
including testimony by Courtney’s expert witnesses. Second,
8
According to Dr. Royston, general tutoring provided by a private tutor-
ing center did not qualify as special education.
17038 MICHAEL P. v. DEPARTMENT OF EDUCATION
the district court held as a matter of law that Hawaii DOE
may use the “severe discrepancy model” under the 2006 fed-
eral regulations. Third, the district court held that Courtney’s
test results did not demonstrate a “severe discrepancy”
between her intellectual ability and academic achievement
because her scores on standardized achievement tests were
higher than her IQ score.

Courtney’s mother appeals the district court’s decision, pri-
marily arguing that Hawaii DOE improperly relied exclusively
on the “severe discrepancy model” to determine whether
Courtney was eligible for special education under the “spe-
cific learning disability” classification.9 We agree.

STANDARD OF REVIEW

We review a district court’s findings of fact in IDEA cases
for clear error, and we review its conclusions of law de novo.
Seattle Sch. Dist., No. 1 v. B.S., 82 F.3d 1493, 1499 (9th Cir.
1996). We review the Hearing Officer’s decision de novo, but
we “must give deference to the [Hearing Officer]’s findings,
particularly when . . . they are thorough and careful[,] [and]
must give ‘due weight’ to judgments of educational policy.”
Id. (internal citations and quotation marks omitted). “We
define ‘due weight’ as follows: [t]he court, in recognition of
9
Courtney also argues that Hawaii DOE violated IDEA by failing to
consider the results of Dr. Murphy-Hazzard’s neuropsychological evalua-
tion. This argument fails because the record shows that the evaluation
team discussed the neuropsychological evaluation at length. IDEA only
requires a school district to consider the results of a parent-initiated evalu-
ation; it does not require a school district to adopt the conclusions of such
an evaluation. See 34 C.F.R. § 300.502(c)(1).
Courtney also argues that Hawaii DOE shirked its child find duty.
Under IDEA, all states have an obligation to ensure that children with dis-
abilities residing in their state are identified, located and evaluated. See 20
U.S.C. § 1412(a)(3).
We need not reach this argument because we reverse and remand on the
eligibility question.
 MICHAEL P. v. DEPARTMENT OF EDUCATION 17039
the expertise of the administrative agency, must consider the
findings carefully and endeavor to respond to the hearing offi-
cer’s resolution of each material issue. After such consider-
ation, the court is free to accept or reject the findings in part
or in whole.” N.B. v. Hellgate Elementary Sch. Dist., 541 F.3d
1202, 1212 (9th Cir. 2008) (internal citations and quotation
marks omitted).

DISCUSSION

I. Hawaii DOE’s Regulations Requiring Exclusive Reli-
ance on the “Severe Discrepancy Model” Violate
IDEA

[1] Federal regulations cabin states’ discretion to create
special education eligibility criteria in two ways. First, states
“[m]ust not require the use of the severe discrepancy between
intellectual ability and achievement for determining whether
a child has a specific learning disability.” 34 C.F.R.
§ 300.307(a)(1). Second, states “[m]ust permit the use of a
process based on the child’s response to scientific, research-
based intervention.” 34 C.F.R. § 300.307(a)(2). These regula-
tions were effective beginning October 13, 2006, and there-
fore were controlling at the time of Courtney’s final eligibility
meeting on November 29, 2006.

The district court held that § 300.307(a) does not bar use of
the “severe discrepancy model.” This holding misses the
point. Courtney’s mother concedes that the federal regulations
permit use of the “severe discrepancy model,” but contends
that Hawaii DOE may not use the “severe discrepancy model”
as “the sole basis of determining eligibility” (emphasis
added).

[2] The plain and unambiguous language of § 300.307(a)
prohibits states from requiring exclusive reliance on the “se-
vere discrepancy model” and also requires states to allow use
of the “response to intervention model.” The Hawaii regula-
17040 MICHAEL P. v. DEPARTMENT OF EDUCATION
tions in effect at the time of Courtney’s final eligibility meet-
ing conflicted with § 300.307(a) by conditioning eligibility
for special education on the existence of a “severe discrepan-
cy” between academic achievement and intellectual ability
without permitting use of the “response to intervention
model.” See Haw. Code R. § 8-56-26 (repealed Nov. 23,
2009). Hawaii DOE did not amend its regulations to conform
with federal law until November 23, 2009—more than three
years after the federal regulations were effective. See Haw.
Code R. § 8-60-41. Accordingly, Hawaii DOE procedurally
violated IDEA by requiring use of the “severe discrepancy
model” to determine whether a child is eligible for special
education under the “specific learning disability” classifica-
tion.

[3] Hawaii DOE argues that it is not subject to
§ 300.307(a)(1). By its terms, § 300.307(a)(1) applies to states
and not to local school districts. See John Dinan, The Meaning
of State Constitutional Education Clauses: Evidence from the
Constitutional Convention Debates, 70 Alb. L. Rev. 927, 965
(2007). Unlike other states, Hawaii only has a state educa-
tional agency and does not have separate local school dis-
tricts. Id. Thus, Hawaii DOE serves both as the state
educational agency, which creates statewide education regula-
tions, and as the local school district, which provides educa-
tional services directly to students. Id. Because of these
unique circumstances, Hawaii DOE argues that § 300.307(a)
should not apply. According to Hawaii DOE, application of
§ 300.307(a) would deprive Hawaii DOE of its right to
choose the best method for identifying students with a “spe-
cific learning disability,” a right every other school district
enjoys.

[4] While Hawaii DOE is correct that it functions as both
a state agency entrusted with IDEA compliance and as a
direct provider of educational services, Hawaii DOE is incor-
rect that it may shirk its responsibilities as a state educational
agency just because it also provides educational services
 MICHAEL P. v. DEPARTMENT OF EDUCATION 17041
directly to students. Under the amended regulations, no state
educational agency may condition eligibility for special edu-
cation on the existence of a “severe discrepancy” between
academic achievement and intellectual ability, and every state
must allow use of the “response to intervention” model.10 34
C.F.R. § § 300.307(a)(1), (2). As a state educational agency,
Hawaii DOE was required to promulgate regulations that are
consistent with federal regulations. See 20 U.S.C. §§ 1407(a),
1412(a)(11). Hawaii DOE failed to fulfill this obligation by
continuing to operate under regulations that required use of
the “severe discrepancy model” and did not permit use of the
“response to intervention model.” Accordingly, Hawaii DOE
procedurally violated IDEA.11 To hold otherwise would be
detrimental to the children of Hawaii and contrary to legisla-
tive intent. See H.R. Rep. 108-77, at 107 (noting that exclu-
sive reliance on the “severe discrepancy model” may result in
delayed or incorrect identification of students who are eligible
for services under IDEA); accord Weber, supra 123-27.

10
Our dissenting colleague agrees that “34 C.F.R. § 300.307(a)(1) pro-
hibits states from requiring local districts to use the severe discrepancy
model.” Dis. Op. at 17049. Our colleague further notes that “[t]he final
regulations left the choice of whether to use the severe discrepancy model
or alternative procedures to the discretion of local school districts.” Dis.
Op. at 17048. But, according to the dissent, Hawaii DOE’s unique
situation—as a direct provider of educational services—renders it more
like a local school district and, thus, the regulation’s prohibition is inappli-
cable. If that were so, any state could effectively remove from any local
school district the discretionary authority to choose whether to use the
severe discrepancy model or an alternative model by providing direct edu-
cational services itself, for whatever reason that state chose to do so.
Moreover, Congress was presumably aware of Hawaii’s unique situation
and made no exception for it.
11
In so holding, we certainly mean no disrespect to our dissenting col-
league or to the State of Hawaii. We merely hold Hawaii and Hawaii DOE
to the same standards Congress has chosen for all states and state agencies
entrusted with IDEA compliance.
17042 MICHAEL P. v. DEPARTMENT OF EDUCATION
II. Whether Courtney Was Erroneously Found Ineligi-
ble for Special Education

[5] A procedural violation of IDEA is harmless unless it
deprives the child of an educational opportunity. See R.B. v.
Napa Valley Unified Sch. Dist., 496 F.3d 932, 938 (9th Cir.
2007). A child experiences an egregious loss of educational
opportunity when she is erroneously denied eligibility for spe-
cial education services. Cf. T.A., 129 S. Ct. at 2495 (“It would
be particularly strange for the Act to provide a remedy, as all
agree it does, when a school district offers a child inadequate
special education services but to leave parents without relief
in the more egregious situation in which the school district
unreasonably denies a child access to services altogether.”).
Thus, our next task is to determine whether Hawaii DOE’s
unlawful regulations, which require use of the “severe dis-
crepancy model,” resulted in an improper special education
eligibility determination.

Hawaii DOE eventually amended the unlawful regulations
applied at Courtney’s eligibility meeting to conform with fed-
eral law. Haw. Code R. § 8-60-41(a)(1)-(2). Under these new,
conforming regulations, an evaluation team may find a stu-
dent eligible for special education under the “specific learning
disability” classification if:

(1) (A) The student does not achieve adequately for
the student’s age or to meet State-approved grade-
level standards in one or more of the following areas,
when provided with learning experiences and
instruction appropriate for the student’s age or State-
approved grade-level standards:

(i) Oral expression;

(ii) Listening comprehension;

(iii) Written expression;
 MICHAEL P. v. DEPARTMENT OF EDUCATION 17043
(iv) Basic reading skill (including phone-
mic awareness, phonics, and/or vocabu-
lary);

(v) Reading fluency skills;

(vi) Reading comprehension;

(vii) Mathematics calculation;

(viii) Mathematics problem solving; or

(B) The student demonstrates a severe discrepancy
between actual achievement and intellectual ability
by a difference of at least one and one-half standard
deviations in one or more of the areas in subpara-
graph (A); and

(2) (A) The student does not make sufficient prog-
ress to meet age or State-approved grade-level stan-
dards in one or more of the areas identified in
paragraph (1)(A) when using a process based on the
student’s response to scientific, research-based inter-
vention; or

(B) The student 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 by the
group to be relevant to the identification of a specific
learning disability, using appropriate assessments
....

Haw. Code R. § 8-60-41(a)(1)-(2). Unlike Hawaii’s prior reg-
ulations, these new regulations do not require a “severe dis-
crepancy” between intellectual ability and academic
achievement. Moreover, these new regulations permit use of
the “response to intervention model.” Id.
17044 MICHAEL P. v. DEPARTMENT OF EDUCATION
[6] Under Hawaii’s new regulations, a child will be
deemed eligible for special education under the “specific
learning disability” classification if she satisfies two sets of
criteria. First, the child must demonstrate either (1) inadequate
achievement, or (2) a severe discrepancy between achieve-
ment and ability. Id. Second, the child must demonstrate
either (1) insufficient progress, or (2) a pattern of strengths or
weaknesses in performance consistent with a “specific learn-
ing disability.” Id. 20 U.S.C. § 1415(i)(2)(C)(iii) provides that
a court should base its decision with respect to a child’s eligi-
bility on the preponderance of the evidence. The district court
is the traditional forum in which facts are assessed and evi-
dence is weighed, as it has the ability to delve deeply into fac-
tual records and, where necessary, conduct evidentiary
hearings. See Cooter & Gell v. Hartmarx Corp., 496 U.S.
384, 402-03 (1990) (noting, in the context of Rule 11, that
“the district court is better situated than the court of appeals
to marshal the pertinent facts and apply the fact-dependent
legal standard”); In re Bradford, 112 B.R. 347, 352 (9th Cir.
1990) (citing Anderson v. City of Bessemer City, N.C., 470
U.S. 564, 574 (1985)) (“The trial judge’s major role is the
determination of fact, and with experience in fulfilling that
role comes expertise.”). Therefore, the district court is the
appropriate authority to assess and reach a conclusion as to
Courtney’s eligibility for special education under the “specific
learning disability” classification, a primarily fact-based
inquiry. Accordingly, this court hereby remands this case
back to the district court to determine, by a preponderance of
the evidence, whether Courtney would be eligible for special
education under the “specific learning disability” classifica-
tion.

III. Reimbursement

Courtney’s mother seeks reimbursement for Courtney’s pri-
vate school tuition at Assets, private tutoring, and related
expenses.12 We may award reimbursement for private school
12
Although Courtney’s mother requested reimbursement for non-DOE
evaluations at the due process hearing, she does not request such reim-
bursement in her civil action.
 MICHAEL P. v. DEPARTMENT OF EDUCATION 17045
placement if a school district unreasonably finds a child with
disabilities ineligible for services under IDEA and the private
school placement is appropriate. See T.A., 129 S. Ct. at 2495-
96. Reimbursement is also available for private tutoring and
related services, such as transportation. See, e.g., Union Sch.
Dist. v. Smith, 15 F.3d 1519, 1528 (9th Cir. 1994) (holding
that reimbursement for reasonable transportation to private
school placement is permitted as a related expense); W.G. v.
Bd. of Trs. of Target Range Sch. Dist. No. 23, 960 F.2d 1479,
1487 (9th Cir. 1992) (awarding parents reimbursement for
private tutoring).

[7] As discussed above, the district court must determine
whether Hawaii DOE erroneously denied Courtney eligibility
for special education under the “specific learning disability”
classification. We remand to the district court to determine
whether Courtney’s privately procured education, including
private school placement, private tutoring and related ser-
vices, was appropriate and to award reimbursement accord-
ingly. See, e.g., Adams v. Oregon, 195 F.3d 1141, 1151 (9th
Cir. 1999) (finding in favor of student, but remanding to the
district court to determine whether private services obtained
by student’s parents were appropriate); accord D.S. v. Bay-
onne Bd. of Educ., 602 F.3d 553, 569 (3d Cir. 2010) (finding
in favor of student, but remanding to the district court to
determine the precise relief that should be afforded to the stu-
dent, including reimbursement).

CONCLUSION

Hawaii DOE procedurally violated IDEA by applying regu-
lations that require exclusive reliance on the “severe discrep-
ancy model” at Courtney’s final eligibility meeting. This
violation deprived Courtney of a significant educational
opportunity because it resulted in an erroneous eligibility
determination. Accordingly, we REVERSE the district court’s
order affirming the Hearing Officer’s decision and REMAND
for further proceedings to determine (1) whether Courtney has
17046 MICHAEL P. v. DEPARTMENT OF EDUCATION
a “specific learning disability” and is eligible for services
under IDEA, (2) whether Courtney’s placement at Assets and
private dyslexia reading tutoring is appropriate, and (3) the
appropriate amount of reimbursement.

REVERSED AND REMANDED.

CLIFTON, Circuit Judge, dissenting:

According to the majority, there is only one school district
in the entire country which is forbidden from deciding for
itself whether to use the “severe discrepancy model” in deter-
mining whether a student has a specific learning disability.
That school district is not one in which either of the judges in
the majority live. It is where I live: the state of Hawaii.

The majority’s decision is not based on any particular ani-
mus toward me, nor, I am sure, by any antagonism toward the
state of Hawaii. Nonetheless, I view the majority opinion as
remarkably disrespectful towards the state, simply because
Hawaii has decided to operate its public schools through a
single statewide school district. Because the majority opinion
is also wrong in its interpretation of federal law regarding the
authority of the Hawaii Department of Education (“Hawaii
DOE”) under IDEA and has not shown the proper deference
to the findings of the hearing officer, I respectfully, but force-
fully, dissent.

I. Hawaii DOE’s Regulations Requiring Exclusive
Reliance on the “Severe Discrepancy Model” Did Not
Violate IDEA

Hawaii is the only state in the nation that has placed the pri-
mary responsibility for public education on the state itself. It
does not operate public schools through smaller local districts.
The majority ignores the fact that the Hawaii DOE is the local
 MICHAEL P. v. DEPARTMENT OF EDUCATION 17047
educational agency and treats it instead as if its role was that
of supervising the actual local school authorities.

Neither the federal statute nor the regulations prevent any
local educational agency from using the severe discrepancy
model to determine the existence of a specific learning dis-
ability. Indeed, the statute, as amended, is explicitly worded
in a way that reflects the intent to permit the local agency to
decide for itself. As the majority opinion describes, at
17027-28, federal regulations formerly compelled the use of
the severe discrepancy measure. In 2004, Congress eliminated
that requirement. As amended, 20 U.S.C. § 1414(b)(6)(A)
provides that “when determining whether a child has a spe-
cific 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.”

Notably, the statute was not amended to say that a local
school district was forbidden to use that measure. Congress
could have so provided if that was its intent, but it did not.
Instead, Congress left the matter to the local district’s judg-
ment. The legislative history behind the 2004 amendments to
IDEA clearly indicated the intent of Congress to “specifically
allow[s] local educational agencies to continue to use the dis-
crepancy model.” See H.R. Rep. 108-77, Sec. 204, at 107
(2003).

That Congress intended for the decision to be made by the
local school district was further demonstrated by its approach
to the alternative “response to intervention” model. The stat-
ute allows but does not require use of that 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 scien-
tific, research-based intervention”). Language in proposed
regulations would have authorized states to completely forbid
local educational agencies from using the severe discrepancy
17048 MICHAEL P. v. DEPARTMENT OF EDUCATION
model, but that language was deleted in response to concerns
that it exceeded the language of the statute. See 70 Fed. Reg.
35864 (June 21, 2005); Dixie Snow Huefner, The Final Regu-
lations for the Individuals with Disabilities Education
Improvement Act (IDEA ‘04), 217 Ed. Law Rep. 1, 8-9
(2007). The final regulations left the choice of whether to use
the severe discrepancy model or alternative procedures to the
discretion of local school districts. See 34 C.F.R.
§ 300.307(a)(2); Paul Secunda, “At Best An Inexact Science”:
Delimiting the Legal Contours of Specific Learning Disability
Eligibility Under IDEA, 36 J.L. & Educ. 155, 161 (2007)
(book review) (noting that the federal regulations allow local
school districts substantial latitude in choosing between
severe learning disability eligibility criteria).

The Hawaii DOE, though obviously an arm of state govern-
ment, is the local educational agency for Hawaii. It would
make far more sense for us to treat it that way. IDEA defines
“local educational agency” as a “public authority legally con-
stituted within a State for either administrative control or
direction of, or to perform a service function for public ele-
mentary schools or secondary schools in a city, county, town-
ship, or school district.” 20 U.S.C. § 1401(19)(A). Hawaii has
only one school district. The Hawaii DOE, together with the
state Board of Education, is responsible for making policy
decisions, performing administrative functions, and providing
educational services directly to students.1
1
It is possible, of course, to debate the merit of having a single school
district for the entire state. That subject has been discussed in Hawaii on
a recurring basis, but proposals to break the state into smaller local school
districts have not been enacted. The statewide district is consistent with
Hawaii’s approach to governance generally. The division of responsibility
and authority in Hawaii is unusually tilted toward state government versus
municipalities. Similarly, the only political subdivisions in Hawaii are four
county governments, each covering one or more entire islands. There are
no town or city governments covering smaller areas.
 MICHAEL P. v. DEPARTMENT OF EDUCATION 17049
According to the majority, the Hawaii DOE, simply
because it is a state agency, lacks the ability to decide for
itself how to determine eligibility criteria under IDEA. Every
other school district in the country has that authority, even
local districts with student populations that far exceed
Hawaii’s.2

The majority’s interpretation contradicts legislative intent
and the plain text of the statute and federal regulations. The
majority is right that 34 C.F.R. § 300.307(a)(1) prohibits
states from requiring local districts to use the severe discrep-
ancy model. But this prohibition was clearly intended to limit
what states may compel local educational agencies to do, in
the typical situation where local agencies are entities other
than the state. See H.R. Rep. 108-77, Sec. 204, at 107 (2003).
It does not limit how the state may define eligibility criteria
in the unique situation — applicable only to Hawaii — when
it is also acting in the capacity of a local educational agency.
Congress surely did not intend to deny the local school
authority in Hawaii the same authority that is expressly recog-
nized in all other school districts. The majority opinion gives
no logical reason for doing so.

Hawaii DOE did not “shirk its responsibilities as a state
educational agency,” as the majority opinion claims, at 17040.
It has not “required” that school districts under its supervision
use the severe discrepancy measure. Rather, it simply exer-
cised its authority under the IDEA to choose whether or not
2
In 2009, the Los Angeles Unified School District served approximately
688,000 K-12 students. New York City’s Department of Education pro-
vided education to 1.1 million students. Hawaii’s DOE served only about
180,000 students. See Los Angeles Unified School District, “Fingertip
Facts,” http://www.teachinla.com/Research/faq_notebook/2009-2010/
A1.pdf; New York City Department of Education, “About Us,”
http://schools.nyc.gov/AboutUs/default.htm; Hawaii Department of Edu-
cation, “About Us,” http://doe.k12.hi.us/about/index.htm (last visited Aug.
23, 2011).
17050 MICHAEL P. v. DEPARTMENT OF EDUCATION
it would itself use the severe discrepancy standard.3 As such,
the Hawaii regulations in place at the time of Courtney’s eli-
gibility hearing did not procedurally violate the IDEA.

The majority opinion’s effort to justify its conclusion in
response to this dissent is remarkably unpersuasive. The
majority suggests that if the State of Hawaii is treated as a
“local educational agency” under the regulation, then “any
state could effectively remove from local school districts the
discretionary authority to choose whether to use the severe
discrepancy standard or an alternative model by providing
direct educational services itself.” Majority opinion, at 17041
n. 10. So what? If any other state adopted Hawaii’s system of
a single statewide school district, there would, of course, be
no other “local school districts” within that state to exercise
any authority. But what does that establish? Hawaii’s state-
wide system existed long before the federal statute and regu-
lations were amended in 2004 and 2006, so it obviously
wasn’t set up to evade those enactments. And nobody can
seriously suggest that any state would abolish local school
districts and take on for itself the entire responsibility for pub-
lic education simply to evade the regulation in order to be
able to require the use of a severe discrepancy standard. Con-
gress very clearly did not prohibit a local agency from decid-
ing to use the severe discrepancy standard. Hawaii should
have the same freedom to decide for itself that all other school
districts in the country do.

The second justification offered in the same footnote of the
majority opinion is even emptier, if that’s possible. That Con-
gress did not make an exception for Hawaii is not a surprise
3
As the majority opinion notes, at 17028, in 2009 Hawaii decided to
move away from the severe discrepancy approach itself, by repealing the
regulations that called for use of that measure. But in doing so, Hawaii did
not thereby “conform its regulations to federal law,” as asserted by the
majority opinion, at 17030. It simply exercised its judgment as to what
measure to use in determining the existence of specific learning disabili-
ties, as federal law authorized it to do.
 MICHAEL P. v. DEPARTMENT OF EDUCATION 17051
because the statute and regulation, read logically, do not
require an exception for Hawaii. The Hawaii Department of
Education is the “local educational agency” for Hawaii; it is
not some state overseer. The majority opinion justifies its
result only by assuming the correctness of that result. The
majority opinion fails to explain why Hawaii should be
treated differently, and its inability to do so underscores the
emptiness of its reasoning.

II. Courtney Was Not Erroneously Found Ineligible for
Special Education

Since the previous regulations were lawful, it should not be
necessary to consider Courtney’s eligibility under the
amended regulations. Nevertheless, under either version, the
hearing officer had a sufficient basis to conclude that Court-
ney did not demonstrate a specific learning disability.4

We must accord deference to the hearing officer’s findings
when they are “thorough and careful.” Seattle Sch. Dist., No.
1 v. B.S., 82 F.3d 1493, 1499 (9th Cir. 1996). We also accord
deference to the policy decisions of a school district when it
is acting within the boundaries of federal and state law. Union
Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir. 2004). It is
not the role of this court to substitute its “own notions of
sound educational policy for those of the school authorities
which they review.” See Wilson v. Marana Unified Sch. Dist.,
735 F.2d 1178, 1183 (9th Cir. 1984). Unfortunately, the
majority opinion wants to reach a different result so it does
exactly what we are not supposed to do.

The hearing officer laid out the factual basis for his deci-
4
Under the amended regulations, the child must demonstrate either (1)
inadequate achievement, or (2) a severe discrepancy between achievement
and ability; and either (1) insufficient progress, or (2) a pattern of
strengths or weaknesses in performance consistent with a “specific learn-
ing disability.” See Haw. Code R. § 8-60-41(a)(1)-(2).
17052 MICHAEL P. v. DEPARTMENT OF EDUCATION
sion and carefully considered all of the testimony and reports.
The officer discussed, in detail, instances where the testimony
of an expert or teacher contradicted the findings of Courtney’s
expert witnesses. His conclusions that Courtney did not show
a need for special education and services, Haw. Code R. § 8-
56-15, and that she did not qualify for special education under
the specific learning disability category, Haw. Code R. § 8-
56-26(b), were thorough and well-reasoned. The district court
concluded that the evidence in the record supported his find-
ings, and I agree.

The hearing officer did not err in finding that Courtney did
not demonstrate a discrepancy between her academic achieve-
ment and intellectual ability sufficient to constitute a specific
learning disability. Haw. Code R. § 8-56-26(b). The DOE
measured Courtney’s IQ using the Wechsler Intelligence
Scale for Children — Fourth Edition. Courtney’s full-scale IQ
was 82, which was in the low-average range. However, aca-
demic assessments conducted by the DOE in May 2006 indi-
cated that her reading skills were in the average range. On the
Woodcock-Johnson III Tests of Achievement (“WJ-III”), her
“basic reading” and “reading comprehension” scores were
average, and her “broad reading” score was “low average.”
On the Kaufman Test of Educational Achievement, Second
Edition (“KTEA-II”), her “reading” and “reading fluency”
scores were rated as average. The DOE’s psychological
examiner concluded that Courtney’s “sight vocabulary, pho-
nics, structural analysis skills, and reading comprehension
skills were all measured within the average range for her age”
on both tests. Her scores were equivalent to if not higher than
her IQ.

Courtney clearly struggled with reading, and she demon-
strated signs of dyslexia. But according to school psychologist
Dr. Abigail Royston, the evidence suggested that her dyslexia
was mild. The hearings officer, noting substantial evidence of
Courtney’s adequate reading performance, properly rejected
the conclusions of Courtney’s expert witnesses that her diffi-
 MICHAEL P. v. DEPARTMENT OF EDUCATION 17053
culties with reading were severe enough to warrant special
education. The WJ-III and KTEA-II scores, and the observa-
tions of school psychologists and Courtney’s teachers, indi-
cated that Courtney was near-proficient in reading by her
fifth-grade year. Psychological examiner Cigdem Fernandez,
who administered the reading assessment tests, noted that
Courtney demonstrated “the ability to read high-frequency
words, sound out unfamiliar words, and comprehend con-
nected discourse while reading at an age appropriate level.”
After a November 9, 2006 evaluation of Courtney’s speech,
hearing, and language abilities, speech pathologist Hanna
Mendes concluded that Courtney’s overall language skills
were in the average range and that she has “adequate language
and articulation abilities to succeed in a regular education
classroom.” Courtney’s score on a state standardized reading
test in the spring of 2007 was 296, which was on the upper
end of the “approaches proficiency” range. Her score was
similar to the average score of fifth graders in her school and
fifth graders statewide.

The majority incorrectly suggests that Courtney’s strong
performance on the 2007 state reading test was the direct
result of her weekly reading tutoring with Dr. Ferguson. In
reality, Courtney was showing substantial progress before she
began her tutoring with Dr. Ferguson in January 2007. Burns
and Roe reading assessments conducted in August 2006 and
November 2006, at the beginning of Courtney’s fifth grade
year, indicated that she was reading at the fourth grade level.
According to Courtney’s teacher Liza Galindo, Courtney
showed substantial improvement on the November 2006
assessment. On that test, she “went back and reread for under-
standing and went back and corrected word substitutions,”
strategies Galindo had not seen before. By the spring of that
academic year, according to the state’s reading assessment,
Courtney was reading at a level near-equivalent to her peers.
By her sixth grade year, according to Galindo, Courtney had
continued to improve and was showing increased reading
comprehension and fluency.
17054 MICHAEL P. v. DEPARTMENT OF EDUCATION
The record does not compel the conclusion that Courtney’s
academic achievement was incommensurate with her intellec-
tual abilities, that her reading performance was substantially
below average, or that she required special education to per-
form adequately in school. Haw. Code R. § 8-56-15; § 8-60-
41(a)(1)-(2). The DOE determined that Courtney’s difficulties
with reading could be addressed through assistance in the reg-
ular classroom setting. Courtney’s improvement during her
fifth and sixth grade year attest to her ability to make progress
without special education. We must defer to the hearing offi-
cer’s appropriate conclusion that a given child did not demon-
strate eligibility for special education. See Union Sch. Dist.,
15 F.3d at 1524. We should do so here.

III. Conclusion

The judgment of the district court should be affirmed. It is
wrong for the majority to substitute its judgment for that of
the hearing officer. It is even more wrong for the majority to
treat Hawaii as a second-class state, unable to make for itself
a decision that every other school district in the country is
permitted to make. I dissent.