FILED
NOT FOR PUBLICATION
MAR 30 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BARBARA AVILA and MIGUEL No. 14-35965
AVILA,
D.C. No. 2:10-cv-00408-EFS
Plaintiffs-Appellants,
v. MEMORANDUM*
SPOKANE SCHOOL DISTRICT 81,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Argued and Submitted December 5, 2016
Seattle, Washington
Before: McKEOWN, TALLMAN, and CHRISTEN, Circuit Judges.
The Avilas, parents of a student in Spokane School District 81, appeal the
district court’s order dismissing their claims that the District violated the
Individuals with Disabilities in Education Act (IDEA), 20 U.S.C. § 1400 et seq.
The Avilas argue that the District violated the IDEA by failing to assess their child,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
G.A., for dyslexia and dysgraphia in a 2010 reevaluation of G.A.’s special
education needs.1 The district court concluded that the District’s 2010 reevaluation
of G.A. was appropriate and did not merit an independent educational evaluation at
the District’s expense. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
“[I]f the local educational agency determines that the educational or related
services needs, including improved academic achievement and functional
performance, of the child warrant a reevaluation,” a local educational agency must
conduct a reevaluation to “determine whether the child is a child with a disability .
. . and the educational needs of the child.” 20 U.S.C. § 1414(a)(2)(A)(i),
(c)(1)(B)(i). Washington law requires that students be reevaluated “in all areas
related to the suspected disability, including, if appropriate, health, vision, hearing,
social and emotional status, general intelligence, academic performance,
communicative status, and motor abilities.” Wash. Admin. Code
§ 392-172A-03020(3)(e); see also 34 C.F.R. § 300.304(c)(4) (same). If a “school
district fail[s] to conduct the statutorily mandated assessment of ‘all areas of
1
We address the Avilas’ claim that the district court erred in its
application of the IDEA’s statute of limitations to their pre-April 2008 claims in a
published opinion filed concurrently with this memorandum disposition.
2
suspected disability[,]’ it necessarily deprive[s] [the child] of a free appropriate
public education” as required by the IDEA. Timothy O. v. Paso Robles Unified
Sch. Dist., 822 F.3d 1105, 1126 (9th Cir. 2016), petition for cert. filed, No. 16-672
(U.S. Oct. 31, 2016).
Here, we conclude the District assessed G.A. “in all areas related to [his]
suspected disability” when it tested him for reading and writing inefficiencies. See
Wash. Admin. Code § 392-172A-03020. The District does not refer to specific
reading and writing disorders as dyslexia or dysgraphia, but it evaluates students
for “Specific Learning Disabilit[ies] as defined under 34 CFR 300.8(10)(i),” which
includes reading disorders such as dyslexia and writing disabilities. See 34 C.F.R.
§ 300.8(10)(i). The District reevaluated G.A. by administering a battery of tests,
including many of the same tests used by the Avilas’ private evaluator in G.A.’s
2012 assessment. At oral argument, the Avilas claimed the District should have
used subtests from the WIAT-II test for dyslexia and dysgraphia, but the District
assessed G.A. using the updated WIAT-III test. The Avilas do not identify any
other tests that should have been performed by the District. Unlike in our recent
decision in Timothy O. v. Paso Robles Unified School District, where the school
district failed to assess the child not just for autism specifically, but also for
“autistic-like behavior,” here, the District broadly assessed G.A. for reading
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fluency and fine motor skills aimed at detecting writing inefficiencies. See Paso
Robles, 822 F.3d at 1120 (concluding the school district failed to assess in all areas
of suspected disabilities because it “did not include any of the standard assessments
for autism” or an “assessment for social/adaptive behavior”). The District did
assess G.A. “in all areas related to [his] suspected disability” and did not violate
the IDEA in its 2010 reevaluation.
Each party shall bear its own costs.
AFFIRMED.
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