dissenting in part:
Although I agree with the portions of the majority opinion that affirm the district court, I respectfully dissent from the holdings that find error and reverse.1 For the reasons stated below, I would affirm in full rather than reverse in part.
I. The Transition Services Issue
J.B. (the student) had previously attended PAC, a private school, and was going to attend Koko Head Elementary School, a local public school, in the Fall. Before •J.B.’s transition tó public school, the Hawaii Department of Education (“DOE”) and R.E.B. (J.B.’s father) worked together to develop an Individualized Education Plan (“IEP”) for J.B. R.E.B. was concerned about the DOE’s plan for J.B. to switch classrooms and teachers during the school day and that J.B. would receive less personal attention from his teachers than he received at PAC. R.E.B. wanted the school district to provide “transition services” in the form of “supplementary aides or services” while J.B. was adjusting to public school. On appeal, R.E.B. contends that the DOE violated the Individuals with Disabilities Education Act (“IDEA”) because the DOE did not address his concerns about J.B.’s transition.
The majority notes that the IDEA requires an IEP to describe what “supplementary aids and services” will be made available to the student when these resources will allow the student to “be educated and participate with other children with disabilities and nondisabled children.” The majority then concludes that transition services qualify as supplementary aids and services when “transition services become necessary for disabled children to ‘be educated and participate’ in new academic environments[.]” The majority then holds that the school district violated the IDEA because J.B.’s IEP did not list what transition services would be offered to J.B.
However, the DOE in fact listened to R.E.B.’s concerns about J.B.’s transition and tried to address them at a “transfer plan meeting” held on June 13, 2012. The principal of Koko Head Elementary School stated that the purpose of the meeting was “to consider [J.B.’s] possible needs to minimize potential harmful effects in the transfer from PAC to a public school campus.” The school district decided at that meeting that, to ease J.B.’s transition, J.B. would gradually transition during the summer from PAC to Koko Head and J.B. would not be “mainstreamed” (educated in a general education setting with nondisabled peers) during this summer transition. The DOE decided that this gradual transition would avoid anxiety that could potentially overwhelm J.B. Thus, the DOE responded to R.E.B.’s concerns about J.B.’s transition and made a plan to facilitate that transition that would help J.B. adapt to his new school. The IDEA does not state that an IEP must list what transition services will be made available to a student. Therefore, I would hold that the DOE did not violate the IDEA even though J.B.’s IEP did not list transition services that would be provided to him.
2. The Least Restrictive Environment Issue
J.B.’s IEP states that J.B.
will not participate with nondisabled peers for Reading, Writing, Math, Science, Social Studies, Speech/Language Therapy and Occupational Therapy. [J.B.] will participate with nondisabled peers for Library, Music, PE, Art, Computer, Hawaiian Studies, Mandarin, recesses, lunch, field trips, assemblies and school-wide activities. [J.B.] will also receive specialized instruction in the general education setting for Science and Social Studies activities as deemed appropriate by his Special Education teaeher/Care Coordinator and General Education teacher.
R.E.B. contends that the DOE violated the IDEA because J.B.’s IEP did not specify the Least Restrictive Environment (“LRE”) for J.B.
The majority appears to have no problem with the first two sentences quoted above, which state the academic subjects and parts of the school day that J.B. will not participate with nondisabled peers and the times that he will. However, the majority faults the DOE for including the final sentence quoted above: “[J.B.] will also receive specialized instruction in the general education setting for Science and Social Studies activities as deemed appropriate by his Special Education teacher/Care Coordinator and General Education teacher.” According to the majority, this sentence in the IEP was an improper delegation to J.B.’s teachers, was “too vague to allow R.E.B. [J.B.’s father] to use the IEP as a blueprint for enforcement” and violated the IDEA’S requirement that an IEP must provide details about what specialized instruction will be provided to students with disabilities. Also, the majority states that the IEP gave just a “cursory treatment” of the Rachel H. factors when deciding how much specialized instruction J.B. would receive. According to the majority, in so doing, the DOE denied J.B. a Free Appropriate Public Education (“FAPE”).
I would hold that the DOE did not violate the IDEA’S LRE requirement. 20 U.S.C. § 1412(5)(A) states:
To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily-
Regulations interpreting the IDEA state that the IEP must include “(5) An explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class.” 34 C.F.R. § 300.320(a)(5).
The DOE did include- such an explanation in J.B.’s IEP. In my view, this explanation was sufficient because the IEP team (which included the Koko Head principal, J.B.’s future teachers, and R.E.B.) decided for all academic subjects, as a general matter, whether J.B. would participate with nondisabled peers. The IEP then delegated to J.B.’s teachers the decision to have J.B. participate with nondisa-bled peers for certain “Science and Social Studies activities” even though, as a general matter, J.B. would not participate with nondisabled peers for these subjects. This nuanced determination was reasonable because, as part of the Science curriculum and the Social Studies curriculum, elementary school students often perform experiments, simulations, and field trips—the activities alluded to. Given J.B.’s autism, it was reasonable for the IEP team to conclude that he would be able to participate successfully with nondisabled peers for some of these activities, but not for others, and that which particular Science and Social Studies activities would be appropriate for J.B. could not be determined at an IEP meeting months or years before those activities happened. Therefore, it was reasonable for J.B.’s IEP to specify that J.B.’s “Special Education teacher/Care Coordinator and General Education teacher” would decide together which particular activities J.B. would participate with nondisabled peers with the benefit of specialized instruction.
The majority finds fault with a sentence in J.B.’s IEP that facilitated J.B. “being educated with children who are not disabled” by giving J.B.’s teachers the authority to decide that he could participate with nondisabled peers for certain Science and Social Studies activities. Presumably, had J.B.’s IEP not included that sentence and stated that J.B. will not participate with nondisabled peers for Science and Social Studies entirely, without exception, that decision would have withstood review by this appellate court. Since the IDEA states that children should be educated with nondisabled peers “to the maximum extent appropriate,” 20 U.S.C. § 1412(5)(A), I would respect the school district’s attempt to achieve that goal in J.B.’s IEP.
Moreover, the majority cannot find binding legal authority for the proposition that this provision of J.B.’s IEP was an “improper delegation” and “too vague” to allow the father to use the IEP for enforcement. Instead, the majority cites a case in which we stated that school districts should provide a “formal, specific offer” about a child’s educational placement. But Smith involved a school district that conceded that it “never formally offered [the student’s family] a placement” at a particular school. Id. at 1525. In this case, the school district offered a particular placement, Koko Head Elementary School, and specified when during the school day J.B. would not participate with nondisabled peers and when he would participate with nondisabled peers.
Also, the majority contends that the' school district’s “cursory treatment” of the Rachel H. factors, which school districts use to assess whether a child should be educated with nondisabled peers or with other disabled peers, “ ‘seriously infringed’ J.B.’s father’s opportunity to participate in the IEP process[.]” But the district court concluded that the IEP team “engaged in a thorough analysis that incorporated all four of. the Rachel H. factors.” Notes from, and an audio recording of, the May 7,20'12, IEP meeting confirm that the district court was right. The IEP team discussed the Rachel H. factors for nearly an hour at an IEP meeting. During this time, the' members of the IEP team completed a worksheet that helped the team understand how the different Rachel H, factors cut in favor of educating J.B. with hondisa-bled peers or with other disabled peers,
3. The Applied Behavioral Analysis Issue
At PAC, the private school, J.B.’s teach-' ers had used Applied Behavioral Analysis (“ABA”), a teaching methodology for students with autism. R.E.B. wanted the DOE to specify .in J.B.’s IEP that ABA methodology would be used with J.B. At an IEP meeting on May 9, 2012, J.B.’s father directly stated that he expressed a strong preference for “pure VB-MAPP,” a particular type of ABA methodology. However, at that meeting, J.B.’s future teachers stated that they thought it was best to use multiple méthodologies with J.B. A special education teacher stated that she would “work[ ] off the data submitted by PAC” and then described a numbér of methodologies she would use with J.B., including “natural environment training,” “things they use in OT [occupational therapy] and speech [therapy],” and “[various] reinforce'rs and motivators.” The principal and the teachers explained that they did not want to specify ABA methodology in the IEP because the teachers wanted to usé more than one methodology. As a result, J.B.’s IEP did not' specify any particular methodology. ’ "
R.E.B. contends that the DOE violated the IDEA by not specifying ABA methodology in J.B.’s IEP, and the majority agrees. The majority notes that the IEP team discussed ABA at length and recognized it was an important component of J.B.’s education. Also, the majority states that “ABA is widely recognized as a superior method for teaching children with autism.” Finally, the majority relies on our decision'in J.L. v. Mercer Island Sch. Dist., 592 F.3d 938 (9th Cir. 2009), in which we recognized that school districts sometimes should specify a teaching methodology in a student’s IEP.
J.L. does not provide much guidance about when a school district should specify a teaching methodology in an IEP beyond stating that doing so is necessary for-some students. See id. at 952. However, the facts of J.L, suggest that the DOE was not required to specify ABA methodology in J.B.’s IEP. In J.L., “[t]he District [] declined to name a particular teaching methodology to be utilized by all teachers because its experts recommended several effective programs, not just a single ‘right’ choice.” 592 F.3d at 945. After the district court held that the school district committed a procedural violation of the' IDEA in so doing, we reversed. Id. at 952, 954. As we explained:
We accord deference to the District’s determination and the ALJ’s finding that [the . student’s] teachers needed flexibility in teaching methodologies because there was not a single methodolo-, gy that would always be effective. We hold that the District did -not commit a procedural violation of the Individuals with Disabilities Education Act by-not specifying teaching methodologies in [the student’s] individualized educational programs[.]”
Id. at 952. This case is similar. J.B.’s teachers thought it was bést to use multiple teaching methodologies with J.B. They wanted the flexibility to select the methodology that best fit J.B.’s needs as they arose.
In response, the majority states that “specifying ABA in writing would not have precluded the use of other methodologies.” But this pivot is not supported by legal authority. Moreover, this response is in conflict with J.L. because, if true, we should have affirmed in J.L. since the school district in J.L. could have specified in the student’s IEP the methodology preferred by her parents without precluding the use of other methodologies. Given this precedent and the deference we owe to J.B.’s teachers who thought it was best to use multiple teaching methodologies, I would hold that it was not necessary to specify in J.B.’s IEP that the ABA methodology would be used.
. I'also agree with the majority that the school district’s motion to dismiss the case for mootness should be denied because it is still possible for us to grant effective relief.