J.L. v. Mercer Island School ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
J. L.; M. L.; K. L., their minor 
daughter, No. 07-35716
Plaintiffs-Appellees, D.C. No.
v.  CV-06-00494-MJP
MERCER ISLAND SCHOOL DISTRICT, a AMENDED
municipal Washington corporation, OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted
December 10, 2008—Seattle, Washington
Filed August 6, 2009
Amended January 13, 2010
Before: Robert R. Beezer, Ronald M. Gould and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Beezer
951
Johns. L. v. MERCER ISLAND SCHOOL DISTRICT 953
COUNSEL
James J. Dionne, Lisa M. Worthington-Brown, Lynette M.
Baisch, Dionne & Rorick, Seattle, Washington, for the
defendant-appellant.
954 Johns. L. v. MERCER ISLAND SCHOOL DISTRICT
Howard C. Powers, Seattle, Washington, for the plaintiffs-
appellees.
OPINION
BEEZER, Circuit Judge:
This appeal stems from Plaintiffs’ allegation that Defendant
Mercer Island School District (“District”) failed to provide
K.L. with a free appropriate public education as required by
the Individuals with Disabilities Education Act, 20 U.S.C.
§§ 1400-1491.1 The administrative law judge (“ALJ”) ana-
lyzed Plaintiffs’ claims using the free appropriate public edu-
cation “educational benefit” standard interpreted by the
Supreme Court in Board of Education of the Hendrick Hud-
son Central School District v. Rowley, 458 U.S. 176 (1982),
and concluded that the District provided a free appropriate
public education. The district court concluded that Congress
superseded Rowley in the 1997 Individuals with Disabilities
Education Act amendment and held that K.L. was denied a
free appropriate public education. The District appeals.
The district court exercised federal question jurisdiction
over the instant case under 28 U.S.C. § 1331. We have appel-
late jurisdiction under 28 U.S.C. § 1291. We hold that Rowley
continues to set the free appropriate public education stan-
dard. We vacate the district court’s orders except to the extent
that we reverse the district court’s conclusion that the District
committed procedural violations of the Individuals with Dis-
abilities Education Act that resulted in the denial of a free
appropriate public education. We remand to the district court
to review the ALJ’s determination that the District provided
K.L. with educational benefit as required by Rowley.
1
In the interest of preserving the family’s privacy because K.L. was a
minor at all relevant times, we identify Plaintiffs as “K.L.,” “Parents,”
“Mother” and “Father.”
J. L. v. MERCER ISLAND SCHOOL DISTRICT 955
I
K.L. is a student of average intelligence that the District
diagnosed with learning disabilities in first grade.2 For second
and third grades, the District educated K.L. in several general
education classes upon determining that she would benefit
from an education alongside her typically-developing peers
for social and academic purposes. To “level the playing field”
in K.L.’s mainstreamed general education classes, the District
provided K.L. with accommodations. The District also pro-
vided K.L. with specially designed instruction (i.e., “special
education”) in reading and writing in a “resource room” for
special students. For fourth and fifth grades, Parents paid for
K.L. to attend a private school serving children with reading
and writing difficulties.
K.L. returned to the District for her sixth grade education
at Islander Middle School. The District reevaluated K.L. and
determined that she was still eligible for special education.
K.L.’s intelligence quotient (“IQ”) revealed that she was in
the average range at the low end. In accordance with K.L.’s
individualized educational program, the District educated
K.L. with specially designed instruction in reading, writing
and mathematics. The District provided K.L. with accommo-
dations in her general education classes including peers to
help her read and take notes, use of spelling software, modi-
fied instructions, alternate exam methods, reduced assign-
ments and extra time for assignments. K.L. ended her sixth
grade year with an “A-” in special education reading, an
“A-” in special education language arts, a “B+” in special
education mathematics, an “A” in special education structured
study, an “A-” in general education science, a “pass” in gen-
eral education art and a “pass” in general education Spanish.
2
This factual background reflects our “particular deference” to the
ALJ’s “thorough and careful” administrative findings. See JG v. Douglas
County Sch. Dist., 552 F.3d 786, 793 (9th Cir. 2008).
956 Johns. L. v. MERCER ISLAND SCHOOL DISTRICT
In seventh grade, K.L. continued with largely the same
individualized educational program that she followed in sixth
grade after her individualized educational program team con-
cluded that the program was effective. At the end of seventh
grade, K.L. received an “A-” in special education language
arts (i.e., reading and writing), an “A” in special education
mathematics, an “A-” in special education structured study, a
“B+” in general education biology and an “A” in general edu-
cation art.
In eighth grade, the District modified K.L.’s individualized
educational program and provided 750 minutes per week of
specially designed instruction in reading, writing, mathemat-
ics and study skills. K.L.’s accommodations basically stayed
the same. Halfway through eighth grade, in January 2003,
Mother contacted the District regarding K.L.’s frustrations
with her language arts class. K.L. considered her language
arts class “boring,” “stupid” and “too hard.” Specifically, K.L.
did not like being singled out to give an answer in front of her
classmates. In response, K.L.’s language arts teacher changed
her teaching style, thereby galvanizing K.L. to increase her
classroom participation and self-confidence.
K.L. took a standardized test of basic skills and scored in
the second percentile of eighth graders. Although K.L. made
progress on all of her eighth grade individualized educational
program objectives, she failed to meet all writing objectives,
two reading objectives, one mathematics objective and one
study skills objective. At the end of eighth grade, K.L.
received a “B” in special education language arts, a “B+” in
special education mathematics, an “A” in special education
structured study, an “A” in general education science, an “A”
in general education social studies and a “pass” as a teacher’s
assistant.
The District reevaluated K.L. after eighth grade in June
2003. K.L.’s IQ showed improvement in mathematics and
regression in numerical operations. One of K.L.’s teachers
J. L. v. MERCER ISLAND SCHOOL DISTRICT 957
observed that K.L. performed much better in class than her
standardized test results showed. This was due to a combina-
tion of K.L.’s sporadic lack of motivation and propensity to
get frustrated on tests and simply give up. K.L’s individual-
ized educational program team met shortly thereafter to dis-
cuss the District’s reevaluation. A few days later, K.L.’s
individualized educational program team met and developed
a ninth grade individualized educational program with lofty
objectives. Based on K.L.’s great progress in eighth grade
mathematics, K.L. was placed in a ninth grade algebra class
with a difficulty level between special education mathematics
and general education algebra.
During first semester of ninth grade at Mercer Island High
School, not only did K.L. earn good grades, such as an “A-”
in algebra, but she also participated in athletics and enjoyed
an active (and sometimes distractive) social life. Unfortu-
nately, in March 2004, K.L. missed three weeks of school due
to an illness. One of K.L.’s teachers believed that K.L. “was
not the same student” after she returned and that she was less
motivated. K.L. turned in only half of her algebra homework
and her quiz and test grades decreased as a result. At K.L.’s
request, her individualized educational program team returned
her to special education mathematics and provided her with
another resource room period. Parents hired a private educa-
tional consultant and began researching private schools for
K.L.
At the end of ninth grade, K.L. received a “B-” in special
education English foundations, an “A-” in special education
mathematics, a “C+” in general education history, a “B” in
general education chemistry and an “A” as a teacher’s assis-
tant. K.L.’s grade point average was a 3.49, which was higher
than both the median and mean grade point average for ninth
graders in the District. By the end of ninth grade, K.L. met all
of her mathematics and study skills individualized educational
program objectives, however, she did not meet two of her
reading objectives and any of her writing objectives. Never-
958 Johns. L. v. MERCER ISLAND SCHOOL DISTRICT
theless, K.L.’s individualized educational program team
thought that K.L. “had a very successful year, her grades have
been high and though at times she is frustrated or afraid, she
has managed to tackle the projects with support.” Unbe-
knownst to anyone at the District, Mother completed much of
K.L.’s ninth grade homework, sometimes even in K.L.’s
absence.
Shortly after ninth grade concluded, in June 2004, the Dis-
trict held an individualized educational program meeting and
presented a proposed tenth grade individualized educational
program to Parents. The proposed program provided 972 min-
utes per week of specially designed instruction in reading,
writing, mathematics, study skills and transitions. K.L.’s read-
ing goal was to increase reading decoding and comprehension
skills on grade-level materials. K.L.’s written language goal
was to increase written expression skills in a more indepen-
dent manner. The individualized educational program pro-
vided most of the same accommodations as K.L.’s ninth grade
individualized educational program with the addition of
access to books on tape. The individualized educational pro-
gram’s transition statement indicated that K.L.’s program-
ming “is aimed at attending a community or technical college.”3
Parents told the District that they were displeased with K.L.’s
ninth grade education and were “looking at other options.”
This was the first time that Parents had ever expressed dissat-
isfaction with K.L.’s education.
On the same day, Parents applied to Landmark School, a
private residential school in Massachusetts exclusively for
learning-disabled students.4 In her part of the application, K.L.
3
Plaintiffs assert that they were actually interested in four-year colleges;
however, they admit that K.L. never communicated this aspiration to any-
one at the District.
4
On the application form, Parents indicated that they were negotiating
with the District to fund Landmark School. In fact, Plaintiffs had not even
disclosed their interest in Landmark School to the District at that point in
time.
J. L. v. MERCER ISLAND SCHOOL DISTRICT 959
indicated that she did not like attending Mercer Island High
School because “my resource room teacher does not let me
relax” and “I don’t like the pressure to be an A student.” K.L.
generally thought that her peers were “competitive academi-
cally” and that if a student did not receive a 4.0 grade point
average, “you were the odd one out” and “didn’t fit in.”
The day after the individualized educational program meet-
ing, the District emailed Parents to set up another individual-
ized educational program meeting to address Parents’
dissatisfaction with the proposed program. Parents received
the District’s email but chose not to respond. Sometime there-
after, Mother told K.L.’s case manager at the District that
K.L.’s primary problem was with the teaching style utilized
in English foundations. K.L.’s case manager asked Mother if
K.L. would be more comfortable in a class with either a one-
to-one or one-to-two teacher to student ratio, although K.L.’s
case manager personally believed that this environment would
be too restrictive. Mother declined this more reading intensive
proposal.
Later in June 2004, Parents sent the District a letter request-
ing an independent educational evaluation at the District’s
expense to be performed by Dr. Deborah Hill. See 20 U.S.C.
§ 1415(b)(1)(A). Parents indicated that they disagreed with
the District’s June 2003 reevaluation primarily because of
inappropriate recommendations for instructional strategies
and special education services. The District first rejected Dr.
Hill because she was not on the District’s approved list of
evaluators; however, the District approved Dr. Hill shortly
thereafter.
A few days later, the District sent a letter to Parents seeking
their consent for an independent educational evaluation to be
conducted by Children’s Hospital Regional Medical Center
(“Children’s Hospital”). See 20 U.S.C. § 1414(a)(2). Parents
did not return the consent form.
960 Johns. L. v. MERCER ISLAND SCHOOL DISTRICT
Dr. Hill evaluated K.L. in early July 2004. Dr. Hill found
that K.L. was generally average and had an IQ of 101. K.L.
scored in the borderline or extremely low range in written
comprehension and written language. Dr. Hill concluded that
K.L.’s special education at the District had been inadequate
because K.L. needed an intensive approach to remedy her dis-
ability. Ultimately, Dr. Hill determined, no public school in
Washington could provide K.L. with an appropriate educa-
tion. Dr. Hill recommended Landmark School because of its
focus on improving phonological awareness skills.
In early August 2004, Parents informed the District that
they were unilaterally enrolling K.L. in Landmark School for
tenth grade. They requested tuition reimbursement from the
District.
A few days later, the District sent Parents another consent
form for Children’s Hospital to evaluate K.L. Parents did not
respond to the District before K.L. left to attend Landmark
School in Massachusetts.
In late August, Parents denied consent to the independent
educational evaluation proposed by the District. Parents indi-
cated that they would only allow the District to review
records, teacher reports and guidance team reviews. Parents
refused to allow any communication between the doctors that
would be examining K.L. and the District. Parents asserted
that they could not provide knowledgeable consent until they
received a written description of the evaluation procedures to
be conducted, the purpose of any testing and each evaluation
test, procedure, record or report used to formulate the Dis-
trict’s proposal to evaluate. Parents stated that they wanted to
make sure each evaluation was necessary and avoid duplica-
tive tests. Parents put the District on notice that they had an
attorney.
In early September 2004, the District sent Parents a third
consent form. The District also scheduled an individualized
J. L. v. MERCER ISLAND SCHOOL DISTRICT 961
educational program meeting for mid-September, which was
the earliest time the meeting could be scheduled due to the
large number of participants. District staff held a “pre-
meeting meeting” to develop an individualized educational
program proposal and discuss the recommendations of Par-
ents and Dr. Hill. At the actual individualized educational
program meeting, the District presented a proposal with sev-
eral changes that followed Dr. Hill’s recommendations,
including more intensive reading instruction. No representa-
tive from Landmark School attended this meeting. The indi-
vidualized educational program provided for 1215 minutes
per week of specially designed instruction in reading, writing,
mathematics and study skills. The program included transition
objectives such as exploring career options, meeting success-
ful dyslexic adults, developing self-advocacy and increasing
problem-solving skills. The individualized educational pro-
gram provided the same accommodations as K.L.’s ninth
grade program with the addition of spelling not counting
against K.L.’s grades and the use of additional computer tech-
nology for spelling. The individualized educational program
team rejected a Landmark School placement as inappropriate
for K.L. for various reasons, most notably because the Land-
mark School curriculum did not target K.L.’s deficient areas
and completely segregated her from her typically-developing
peers. At the conclusion of the meeting, Parents informed the
District that K.L. would not return to Mercer Island High
School.
The District sent Parents a fourth independent educational
evaluation consent form at the end of September. In early
October, Parents finally consented. The independent educa-
tional evaluation took place in November when K.L. was
home visiting her family on vacation. The independent educa-
tional evaluation reports from Children’s Hospital over-
whelmingly agreed with the District’s proposed
individualized educational program. The doctors agreed with
the District that sixth to eighth grade was the appropriate
instructional level for K.L and that K.L. demonstrated age-
962 Johns. L. v. MERCER ISLAND SCHOOL DISTRICT
appropriate phonological awareness skills. The doctors found
that K.L. had made an average of at least one year’s progress
per year at the District. The doctors concluded that K.L.
should be educated with her typically-developing peers as
much as possible. One doctor even opined that there was no
evidence demonstrating the effectiveness of Landmark
School’s teaching methodology.
After receiving the independent educational evaluation
reports, the District conducted its own reevaluation and
drafted a reevaluation report dated March 2005. The reevalua-
tion report concluded that K.L. exhibited age-appropriate pho-
nological awareness skills, scored in the low range of
expressive language skills and spelled poorly. The report rec-
ommended keeping most of K.L.’s ninth grade individualized
educational program, which meant keeping her in several gen-
eral education classes because the District continued to
believe that mainstreaming was appropriate for K.L.
The individualized educational program team convened
later in March to discuss the District’s proposed program for
eleventh grade. No representatives from Landmark School
attended but the team reviewed K.L.’s Landmark School
progress reports. The proposed program incorporated many
recommendations suggested by Dr. Hill and all made by Chil-
dren’s Hospital. The individualized educational program pro-
vided previous accommodations as well as access to teacher
notes, not being called on without warning, extra time to
respond to questions, no penalty for spelling errors and home-
work limited to three hours per night. The District expressly
rejected Parents’ request to include the Landmark School cur-
riculum in the program. The District also 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.5
5
The parties’ arguments throughout this litigation have routinely bor-
dered on the quintessential “battle of the experts” concerning what educa-
J. L. v. MERCER ISLAND SCHOOL DISTRICT 963
On June 6, 2005, Plaintiffs filed a due process hearing
request pursuant to 20 U.S.C. § 1415(f), seeking reimburse-
ment for K.L.’s Landmark School tuition and expenses. The
District attempted once more, in August 2005, to appease Par-
ents. The District sent Parents a letter offering a program
engineered by an expert in reading who works at Children’s
Hospital. Parents declined the District’s offer.
K.L. completed tenth, eleventh and twelfth grades at Land-
mark School.6 K.L.’s total expenses were $46,479.90 for tenth
grade, $50,681.24 for eleventh grade and $54,838.54 for
twelfth grade.
II
The ALJ conducted the due process hearing over the course
of eleven days in September and October 2005. The ALJ con-
cluded that the District provided a free appropriate public
education to K.L. as required by Rowley and denied tuition
reimbursement. See 20 U.S.C. § 1412(a)(10)(C)(i) (stating
that a school district is not responsible for private school
reimbursement if it offered a free appropriate public educa-
tion). Plaintiffs sought review from the United States District
Court for the Western District of Washington. See 20 U.S.C.
§ 1415(i)(2)(A).
The district court reversed and remanded. After examining
congressional findings added in the 1997 Individuals with
Disabilities Education Act amendment and the definition of
“transition services,” the district court concluded that Con-
gress sought to supersede the “educational benefit” standard
set forth in Rowley. The district court’s analysis yielded the
tional policy and teaching method is most effective for learning-disabled
students. The District is entitled to deference in deciding what program-
ming is appropriate as a matter of educational policy. See Rowley, 458
U.S. at 206.
6
Plaintiffs moved out of the District prior to K.L.’s twelfth grade year.
964 Johns. L. v. MERCER ISLAND SCHOOL DISTRICT
following new free appropriate public education standard
focused on transition services:
[W]hether the District’s approach to [the student’s]
educational challenges met the IDEA standard of
“equality of opportunity, full participation, indepen-
dent living, and economic self-sufficiency” for the
minor and whether the programs developed for her
conferred a “meaningful educational benefit” in light
of the IDEA’s goals.
J.L. v. Mercer Island Sch. Dist., No. C06-494P, 2006 WL
3628033, at *6 (W.D. Wash. Dec. 8, 2006). The district court
instructed the ALJ that under the new standard, K.L. did not
receive a free appropriate public education in eighth, ninth
and tenth grades. See id. at *4 (“Parents are correct that the
failure of the IEPs to focus on progressing K.L. toward self-
sufficiency (i.e., independent living) and her desired goal of
post-secondary education represents a failure to confer the
benefit contemplated by the IDEA.”). The ALJ’s only tasks
on remand were to determine whether Landmark School was
an appropriate placement and to fashion relief.
On remand, the ALJ concluded that K.L.’s placement at
Landmark School was appropriate. The ALJ awarded reim-
bursement for tuition and related expenses for tenth and elev-
enth grades based on the district court’s holding that K.L. did
not receive a free appropriate public education in those
grades. However, the ALJ equitably reduced tenth grade reim-
bursement by the cost of seven months of enrollment at Land-
mark School after finding that Parents unreasonably delayed
the District’s reevaluation of K.L. prior to her tenth grade
year. See JG v. Douglas County Sch. Dist., 552 F.3d 786, 795
(9th Cir. 2008) (discussing equitable reductions). The ALJ
awarded reimbursement for twelfth grade as “compensatory
education” based on the district court’s holding that K.L. did
not receive a free appropriate public education in eighth and
ninth grades. See Parents of Student W v. Puyallup Sch. Dist.,
J. L. v. MERCER ISLAND SCHOOL DISTRICT 965
No. 3, 31 F.3d 1489, 1496 (9th Cir. 1994) (discussing com-
pensatory education). Both parties sought district court review
of the ALJ’s second decision.
The district court mostly upheld the ALJ’s decision. The
district court did not impose the ALJ’s equitable reduction.
The district court ordered the District to pay for three years
of Landmark School and $160,687.50 in attorneys’ fees. This
appeal followed.
III
[1] “The IDEA provides federal funds to assist state and
local agencies in educating children with disabilities, but con-
ditions such funding on compliance with certain goals and
procedures.” N.B. v. Hellgate Elementary Sch. Dist., 541 F.3d
1202, 1207 (9th Cir. 2008) (quoting Ojai Unified Sch. Dist.
v. Jackson, 4 F.3d 1467, 1469 (9th Cir. 1993)). The Individu-
als with Disabilities Education Act’s primary goal is “to
ensure that all children with disabilities have available to
them a free appropriate public education that emphasizes spe-
cial education and related services . . . .” See 20 U.S.C.
§ 1400(d)(1)(A). “[A] state must comply both procedurally
and substantively with the IDEA.” Hellgate, 541 F.3d at 1207
(quoting M.L. v. Fed. Way Sch. Dist., 394 F.3d 634, 644 (9th
Cir. 2005)). “State standards that are not inconsistent with
federal standards [under the IDEA] are also enforceable in
federal court.” Id. at 1208 (quoting W.G. v. Bd. of Trs. of Tar-
get Range Sch. Dist. No. 23, 960 F.2d 1479, 1483 (9th Cir.
1992)).
States satisfy the Individuals with Disabilities Education
Act’s substantive requirements by providing a disabled child
with a free appropriate public education. In 1975, Congress
enacted the Education for All Handicapped Children Act,
which contained the following definition of a “free appropri-
ate public education”:
966 Johns. L. v. MERCER ISLAND SCHOOL DISTRICT
The term “free appropriate public education” means
special education and related services which (A)
have been provided at public expense, under public
supervision and direction, and without charge, (B)
meet the standards of the State educational agency,
(C) include an appropriate preschool, elementary, or
secondary school education in the State involved,
and (D) are provided in conformity with the individ-
ualized education program required under section
614(a)(5).
Pub. L. No. 94-142, § 4, 89 Stat. 773, 775 (1975) (codified as
amended at 20 U.S.C. § 1401(8)(D)).
[2] In 1982, the Supreme Court rendered its seminal deci-
sion construing the Act and the scope of a free appropriate
public education in Board of Education of the Hendrick Hud-
son Central School District v. Rowley, 458 U.S. 176 (1982).
The Court noted that “Congress was rather sketchy in estab-
lishing substantive requirements.” Id. at 206. The Court con-
cluded that states must provide a “basic floor of opportunity”
to disabled students, not a “potential-maximizing education.”
Id. at 197 n.21, 200. “Congress did not impose upon the
States any greater substantive educational standard than
would be necessary to make such access meaningful.” Id. at
192. Phrased another way, states must “confer some educa-
tional benefit upon the handicapped child.” Id. at 200.
To assist courts in this labyrinth of experts, educational pol-
icy and charged emotions, the Court established a two-part
test to determine whether a state has provided a free appropri-
ate public education. Id. at 206-07. “First, has the State com-
plied with the procedures set forth in the Act? And second, is
the individualized educational program developed through the
Act’s procedures reasonably calculated to enable the child to
receive educational benefits?” Id. (footnotes omitted). “If
these requirements are met, the State has complied with the
J. L. v. MERCER ISLAND SCHOOL DISTRICT 967
obligations imposed by Congress and the courts can require
no more.” Id. at 207.
[3] Congress amended the Act in 1983. See Pub. L. No. 98-
199, 97 Stat. 1357 (1983). Congress did not alter the defini-
tion of a free appropriate public education, see id. § 2, 97 Stat.
at 1357, or indicate its disapproval with Rowley, see generally
Pub. L. No. 98-199, 97 Stat. 1357. Congress introduced the
concept of “transition services” by authorizing federal fund-
ing for states “to assist in the transitional process to postse-
condary education, vocational training, competitive
employment, continuing education, or adult services.” Id.
§ 10, 97 Stat. at 1367. Congress did not require states to sup-
ply transition services. See id.
Congress amended the Act again in 1986. See Pub. L. No.
99-457, 100 Stat. 1145 (1986). Congress did not change the
definition of a free appropriate public education, see id. § 672,
100 Stat. at 1146-47, or indicate disapproval with Rowley, see
generally Pub. L. No. 99-457, 100 Stat. 1145. Congress
slightly changed the law regarding transition services to “in-
clude[ ] supported employment” as an acceptable form of
“competitive employment.” Id. § 306, 100 Stat. at 1163.
Congress’ next amendment came in 1990 when the Act’s
name was changed to the “Individuals with Disabilities Edu-
cation Act.” See Pub. L. No. 101-476, § 901(a)(1), 104 Stat.
1103, 1141-42 (1990). Congress again did not change the def-
inition of a free appropriate public education, see id. § 101,
104 Stat. at 1103-05, or indicate disapproval with the Rowley
free appropriate public education standard, see generally Pub.
L. No. 101-476, 104 Stat. 1103. Congress made two substan-
tial changes regarding transition services. First, Congress
newly required individualized educational programs to con-
tain “a statement of the needed transition services for students
beginning no later than age 16 and annually thereafter (and,
when determined appropriate for the individual, beginning at
age 14 or younger) . . . .” Id. § 101(e)(1), 104 Stat. at 1104.
968 Johns. L. v. MERCER ISLAND SCHOOL DISTRICT
Second, Congress amended the definition of “transition ser-
vices” to the following:
The term “transition services” means a coordinated
set of activities for a student, designed within an
outcome-oriented process, which promotes move-
ment from school to post-school activities, including
postsecondary education, vocational training, inte-
grated employment (including supported employ-
ment), continuing and adult education, adult
services, independent living, or community partici-
pation. The coordinated set of activities shall be
based upon the individual student’s needs, taking
into account the student’s preferences and interests,
and shall include instruction, community experi-
ences, the development of employment and other
post-school adult living objectives, and, when appro-
priate, acquisition of daily living skills and func-
tional vocational evaluation.
Id. § 101(d), 104 Stat. at 1103-04.
Congress amended the Individuals with Disabilities Educa-
tion Act in 1997, the effect of which is disputed in the present
litigation.7 See Pub. L. No. 105-17, 111 Stat. 37 (1997). Even
though Congress added numerous new findings, see id. § 101,
111 Stat. at 38-42, Congress did not indicate disapproval with
Rowley, see generally Pub. L. No. 105-17, 111 Stat. 37. Con-
gress enacted the same definition of a free appropriate public
education for all intents and purposes.8 See id. § 602, 111 Stat.
7
Congress amended the Individuals with Disabilities Education Act
again in 2004. See Pub. L. No. 108-446, 118 Stat. 2647 (2004) (codified
at 20 U.S.C. §§ 1400-1491). Plaintiffs’ claims are governed by the 1997
Individuals with Disabilities Education Act because they filed their due
process hearing request before the 2004 Act’s effective date of July 1,
2005.
8
Congress merely changed “which” to “that,” replaced commas with
semi-colons and updated the internal section reference. See id. § 602, 111
Stat. at 44.
J. L. v. MERCER ISLAND SCHOOL DISTRICT 969
at 44. Congress newly required, “beginning at age 14, and
updated annually, a statement of the transition service needs
of the child . . . that focuses on the child’s courses of study
(such as participation in advanced-placement courses or a
vocational education program).” Id. § 614(d)(1)(A)(vii)(I),
111 Stat. at 84.
IV
“We review the district court’s findings of fact for clear
error, even when the district court based those findings on an
administrative record.” Douglas County, 552 F.3d at 793. “A
finding of fact is clearly erroneous when the evidence in the
record supports the finding but the reviewing court is left with
a definite and firm conviction that a mistake has been com-
mitted.” Hellgate, 541 F.3d at 1207 (internal quotation marks
omitted). “Questions of law and mixed questions of fact and
law are reviewed de novo, unless the mixed question is pri-
marily factual.” Id.
“In IDEA cases, unlike other cases reviewing administra-
tive action, we do not employ a highly deferential standard of
review. Nevertheless, complete de novo review ‘is inappropri-
ate.’ We give ‘due weight’ to the state administrative proceed-
ings.” Douglas County, 552 F.3d at 793 (citations omitted).
“We give particular deference to ‘thorough and careful’
administrative findings.” Id.
V
The District argues that the district court erred in conclud-
ing that Congress sought to supersede Rowley or otherwise
change the free appropriate public education standard. To
support its newly-extrapolated free appropriate public educa-
tion standard requiring transition services targeted at “equality
of opportunity, full participation, independent living, and eco-
nomic self-sufficiency,” the district court relied on three new
970 Johns. L. v. MERCER ISLAND SCHOOL DISTRICT
congressional findings and the definition of “transition ser-
vices.”
We first examine the district court’s reliance on Congress’
definition of “transition services,” originally added in the
1990 Individuals with Disabilities Education Act amendment.
The district court stated:
The IDEA is not simply about “access;” it is
focused on “transition services, . . . an outcome-
oriented process, which promotes movement from
school to post-school activities . . . taking into
account the student’s preferences and interests.” This
is such a significant departure from the previous leg-
islative scheme that any citation to pre-1997 case
law on special education is suspect.
Mercer Island, 2006 WL 3628033, at *4 (citations omitted).
The District argues that the district court failed to appreciate
that the Education for All Handicapped Children Act was
amended in 1990. The District suggests that this explains the
district court’s omission of any discussion of the nexus
between the 1990 amendment, 1997 amendment and the dis-
trict court’s newfound standard.
Although the district court’s order is ambiguous, the Dis-
trict is likely correct based on two of the district court’s
remarks. First, the district court stated that “[i]t is important
to note that the law regarding ‘disability education’ underwent
a change about ten years ago. Prior to that time, the statutory
scheme was the Education for [sic] Handicapped Children Act
of 1975 (EHA) . . . .” Mercer Island, 2006 WL 3628033, at
*4 (emphasis added). Of course, the Education for All Handi-
capped Children Act ceased to exist in 1990 when it was
replaced by the Individuals with Disabilities Education Act,
which was not “about ten years ago.” See Pub. L. No. 101-
476, § 101(d), 104 Stat. 1103, 1103-04 (1990). The district
court simply appears to have been unaware of the 1990
Johns. L. v. MERCER ISLAND SCHOOL DISTRICT 971
amendment. This explains the district court’s reliance on what
it thought was a new definition of “transition services” in
1997, i.e., “about ten years” before the district court’s 2006
order. The second remark demonstrating that the district court
was not cognizant of the 1990 amendment was its footnote
indicating “[a] 1995 (pre-IDEA) case.” Mercer Island, 2006
WL 3628033, at *5. This footnote clearly shows that the dis-
trict court did not realize that the Individuals with Disabilities
Education Act existed before 1997.
However, because of the equivocal nature of the district
court’s order, it is also possible that the district court thought
the Individuals with Disabilities Education Act “evolved”
over time to eventually supercede Rowley in 1997. Neither
Plaintiffs nor the district court have pointed to authority sup-
porting the proposition that we should consider the legislative
“evolution” of a statute when determining Congress’ intent.
Plain meaning interpretation is a “cardinal canon” of statutory
construction, and evolutionary arguments are by no means
plain. See Conn. Nat’l Bank v. Germain, 503 U.S. 249,
253-54 (1992); Rubin v. United States, 449 U.S. 424, 430
(1981) (“When we find the terms of a statute unambiguous,
judicial inquiry is complete, except in rare and exceptional
circumstances.” (internal quotation marks omitted)). Addi-
tionally, for legislation enacted pursuant to the Spending
Clause, U.S. Const. art. I, § 8, cl. 1, such as the Individuals
with Disabilities Education Act, it would seem that “evolu-
tionary” theories by their very nature are foreclosed by the
Supreme Court. See Arlington Cent. Sch. Dist. Bd. of Educ. v.
Murphy, 548 U.S. 291, 296 (2006) (requiring Congress to set
out federal funding conditions “unambiguously” so that states
can accept the funding “voluntarily and knowingly”).
[4] Regardless of the district court’s reasoning, we agree
with the Court of Appeals for the First Circuit that there is no
plausible way to read the definition of “transition services” as
changing the free appropriate public education standard:
972 Johns. L. v. MERCER ISLAND SCHOOL DISTRICT
We do not interpret this statutory language, which
simply articulates the importance of teacher training,
as overruling Rowley. This court has continued to
apply the Rowley standard in cases following the
1997 amendments, as have several [other] circuits.
And that is for good reason. The Rowley standard
recognizes that courts are ill-equipped to second-
guess reasonable choices that school districts have
made among appropriate instructional methods.
Lt. T.B. ex rel. N.B. v. Warwick Sch. Comm., 361 F.3d 80, 83
(1st Cir. 2004).
In addition to the “transition services” definition, the dis-
trict court also relied on three new congressional findings to
support its conclusion that the 1997 amendment dramatically
changed the free appropriate public education standard. First,
Congress found that “[s]ince the enactment and implementa-
tion of the Education for All Handicapped Children Act of
1975, this Act has been successful in ensuring children with
disabilities and the families of such children access to a free
appropriate public education and in improving educational
results for children with disabilities.” Pub. L. No. 105-17,
§ 101(c)(3), 111 Stat. 37, 39 (1997). Second, Congress found
that “the implementation of this Act has been impeded by low
expectations, and an insufficient focus on applying replicable
research on proven methods of teaching and learning for chil-
dren with disabilities.” Id. § 101(c)(4), 111 Stat. at 39. Third,
Congress found that “[i]mproving educational results for chil-
dren with disabilities is an essential element of our national
policy of ensuring equality of opportunity, full participation,
independent living, and economic self-sufficiency for individ-
uals with disabilities.” Id. § 101(c)(1), 111 Stat. at 38.
[5] We conclude that the district court misinterpreted Con-
gress’ intent. Had Congress sought to change the free appro-
priate public education “educational benefit” standard—a
standard that courts have followed vis-à-vis Rowley since
J. L. v. MERCER ISLAND SCHOOL DISTRICT 973
1982—it would have expressed a clear intent to do so.
Instead, three omissions suggest that Congress intended to
keep Rowley intact. First, Congress did not change the defini-
tion of a free appropriate public education in any material
respect. If Congress desired to change the free appropriate
public education standard, the most logical way to do so
would have been to amend the free appropriate public educa-
tion definition itself. Second, Congress did not indicate in its
definition of “transition services,” or elsewhere, that a dis-
abled student could not receive a free appropriate public edu-
cation absent the attainment of transition goals. Third,
Congress did not express disagreement with the “educational
benefit” standard or indicate that it sought to supersede Row-
ley. In fact, Congress did not even mention Rowley.
[6] In re-enacting the free appropriate public education def-
inition in 1997, as Congress had done in the Act’s three prior
amendments, Congress presumably was aware of Rowley and
its renowned “educational benefit” free appropriate public
education standard. See Forest Grove Sch. Dist. v. T.A., 129
S. Ct. 2484, 2492 (2009) (“Congress is presumed to be aware
of an administrative or judicial interpretation of a statute and
to adopt that interpretation when it re-enacts a statute without
change.” (internal quotation marks omitted)). These vague
legislative findings cited by the district court are insufficient
for us to conclude that Congress sought to supersede the ubiq-
uitous free appropriate public education standard set forth in
Rowley. See Branch v. Smith, 538 U.S. 254, 273 (2003) (stat-
ing that “absent a clearly expressed congressional intention,
repeals by implication are not favored” (citations and internal
quotation marks omitted)).
[7] We hold that the district court erred in declaring Rowley
superseded.9 The proper standard to determine whether a dis-
9
We need not separately address the district court’s analysis concerning
whether the District appropriately mainstreamed K.L. and provided her
with accommodations. The district court’s analysis was clearly infected by
its interpretation of the 1997 Individuals with Disabilities Education Act
amendment. On remand, the district court may revisit these issues in light
of Rowley and its progeny.
974 Johns. L. v. MERCER ISLAND SCHOOL DISTRICT
abled child has received a free appropriate public education is
the “educational benefit” standard set forth by the Supreme
Court in Rowley.10 Our holding is necessary to avoid the con-
clusion that Congress abrogated sub silentio the Supreme
Court’s decision in Rowley. Cf. Forest Grove, 129 S. Ct. at
2493-94. On remand, the district court must review in the first
instance the ALJ’s determination that the District provided a
free appropriate public education as required by Rowley.
VI
Although we remand to the district court the issue of sub-
stantive compliance with the Individuals with Disabilities
Education Act so that the court can consider the matter in the
first instance, we need not remand the procedural compliance
issues because the district court’s analysis did not turn on any
disputed legal standards. The district court held that the Dis-
trict failed to confer a free appropriate public education based
on procedural violations involving transition services, the Dis-
trict’s “pre-meeting meeting,” lack of a specified teaching
methodology and lack of specified minutes of instruction. We
discuss each contention in turn.
[8] The District argues that Plaintiffs failed to exhaust their
claim that the District committed a procedural violation of the
Individuals with Disabilities Education Act in regards to tran-
sition services. “[W]hen a plaintiff has alleged injuries that
could be redressed to any degree by the IDEA’s administra-
tive procedures and remedies, exhaustion of those remedies is
10
Some confusion exists in this circuit regarding whether the Individuals
with Disabilities Education Act requires school districts to provide dis-
abled students with “educational benefit,” “some educational benefit” or
a “meaningful” educational benefit. See, e.g., Hellgate, 541 F.3d at
1212-13. As we read the Supreme Court’s decision in Rowley, all three
phrases refer to the same standard. School districts must, to “make such
access meaningful,” confer at least “some educational benefit” on disabled
students. See Rowley, 458 U.S. at 192, 200. For ease of discussion, we
refer to this standard as the “educational benefit” standard.
J. L. v. MERCER ISLAND SCHOOL DISTRICT 975
required.” Robb v. Bethel Sch. Dist. # 403, 308 F.3d 1047,
1048 (9th Cir. 2002); see also 20 U.S.C. § 1415(i)(2)(A).
Plaintiffs did not raise a transition services argument in their
administrative complaint or due process hearing. For this rea-
son, the ALJ did not address transition services. Nevertheless,
the district court held that K.L. was denied a free appropriate
public education based on the District’s failure to supply
appropriate transition services. We hold that the district court
lacked subject matter jurisdiction to consider this unexhausted
claim, and reverse the district court.
[9] The District next argues that the district court erred in
concluding that it predetermined K.L.’s individualized educa-
tional program at the “pre-meeting meeting” in September
2004. There is no evidence supporting the district court’s
finding that the District made program decisions at this prepa-
ratory meeting. See 34 C.F.R. 300.501(b)(3) (stating that an
individualized educational program meeting “does not include
preparatory activities that public agency personnel engage in
to develop a proposal or response to a parent proposal that
will be discussed at a later meeting”). Not only did Parents
actively participate in the individualized educational program
formulation process, the District changed various aspects of
the program based on the recommendations of Parents and Dr.
Hill. See Target Range, 960 F.2d at 1484. We hold that the
District did not commit a procedural violation of the Individu-
als with Disabilities Education Act in its “pre-meeting meet-
ing,” and reverse the district court.
[10] The District next argues that the district court erred in
concluding that the District committed a procedural violation
of the Individuals with Disabilities Education Act by not
specifying a teaching methodology in K.L.’s individualized
educational program. Although school districts should specify
a teaching methodology for some students, for other students
“IEPs may not need to address the instructional method to be
used because specificity about methodology is not necessary
to enable those students to receive an appropriate education.”
976 Johns. L. v. MERCER ISLAND SCHOOL DISTRICT
See 64 Fed. Reg. 12,552. We accord deference to the Dis-
trict’s determination and the ALJ’s finding that K.L.’s teach-
ers needed flexibility in teaching methodologies because there
was not a single methodology that would always be effective.
We hold that the District did not commit a procedural viola-
tion of the Individuals with Disabilities Education Act by not
specifying teaching methodologies in K.L.’s individualized
educational programs, and reverse the district court.
[11] In a similar vein, the District argues that the district
court erred in concluding that the District committed a proce-
dural violation by not specifying the minutes of instruction to
be devoted to each of K.L.’s services in her individualized
educational programs. An individualized educational program
is a “formal, written offer [that] creates a clear record that will
do much to eliminate troublesome factual disputes.” Union
Sch. Dist. v. Smith, 15 F.3d 1519, 1526 (9th Cir. 1994). In an
individualized educational program, a school district must
specify “the anticipated frequency, location, and duration of
[special education] services.” 20 U.S.C. § 1414(d)(1)(A)(vi)
(1998). “The amount of time to be committed to each of the
various services to be provided must be (1) appropriate to the
specific service, and (2) stated in a manner that is clear to all
who are involved.” 64 Fed. Reg. 12,479.
K.L.’s individualized educational program lists her supple-
mentary aids, services and program modifications. These
modifications consist of many access-based accommodations,
such as access to books on tape, access to a peer note taker
and word processing software, extended time for tests and
assignments, alternative exam methods, preferential seating
and scheduling, and use of a calculator and literacy software.
Her 2005 individualized educational program states that she
would have access to these accommodations for 972 minutes
per week. While a lump-sum number like this may not be
appropriate in other individualized educational programs, we
find it to be sufficient in this case. Here, the allocation of a
specific number of minutes to any of the above accommoda-
J. L. v. MERCER ISLAND SCHOOL DISTRICT 977
tions would make no sense because they are all access-based
modifications. Presumably, K.L. had unlimited access to each
of the above accommodations. Because the individualized
educational program is written before the provision of any
services, it is not reasonable to expect the school district to
predict the amount of time the student will actually use the
accommodations to which she has been given access. Here,
K.L.’s individualized educational program still functions as a
“clear record that will do much to eliminate troublesome fac-
tual disputes” because it still lists K.L.’s accommodations and
suggests that they should be available to her on demand.
Smith, 15 F.3d at 1526. Under the circumstances of this case,
we conclude that the amount of time to be devoted to K.L’s
services was appropriate to the specific services provided.
Even if the District did commit a procedural violation by
failing to specify minutes, not every procedural violation
results in the denial of a free appropriate public education. A
procedural violation denies a free appropriate public educa-
tion if it results in the loss of an educational opportunity, seri-
ously infringes the parents’ opportunity to participate in the
IEP formulation process or causes a deprivation of educa-
tional benefits. Hellgate, 541 F.3d at 1208 (quoting Amanda
J. v. Clark Cty. Sch. Dist., 267 F.3d 877, 892 (9th Cir. 2001)).
Here, Plaintiffs fail to show how K.L. was prejudiced by the
District’s failure to specify the amount of services she was to
receive. They do not allege that she was denied an educational
benefit or missed an educational opportunity. Nor do they
show that the parents’ ability to participate in the individual-
ized educational program formulation process was harmed.
Indeed, the record suggests that even though the individual-
ized educational program did not list the amount of services,
everyone involved in the individualized educational team—
including K.L.’s parents—knew of the amounts.
We hold that the District did not violate the Individuals
with Disabilities Education Act by failing to specifying min-
utes of instruction in K.L.’s individualized educational pro-
978 Johns. L. v. MERCER ISLAND SCHOOL DISTRICT
gram. We further hold that any procedural violation that may
have occurred did not deny K.L. a free appropriate public
education, and reverse the district court.
VII
For the reasons discussed, we conclude that the district
court erred in holding that the definition of a free appropriate
public education set forth by the Supreme Court in Rowley
has been superseded, and accordingly, vacate its orders.11 In
addition, we reverse the district court’s conclusions that the
District committed procedural violations of the Individuals
with Disabilities Education Act that resulted in the denial of
a free appropriate public education.
Because it is not clear whether our rulings dispose of all of
K.L.’s claims, we remand this case to allow K.L. to pursue
any such claims she may have asserted that are not deter-
mined by our opinion. On remand, the district court must
review the ALJ’s determination that the District provided
K.L. with a free appropriate public education pursuant to the
“educational benefit” standard set forth in Rowley and reiter-
ated in this opinion. We deny the District’s request for a dif-
ferent judge on remand.
REVERSED in part, VACATED in part and
REMANDED.
11
Because the district court’s awards of reimbursement, related
expenses and attorneys’ fees were premised on its determination that the
District failed to provide K.L. with a free appropriate public education,
vacation of that determination also vacates those awards.