R.B. v. Napa Valley Unified ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
R.B., by and through her Guardian 
Ad Litem, F.B.; F.B.,
No. 05-16404
Plaintiffs-Appellants,
v.  D.C. No.
CV 04-00094-BZ
NAPA VALLEY UNIFIED SCHOOL
OPINION
DISTRICT,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Bernard Zimmerman, Magistrate Judge, Presiding
Argued and Submitted
May 18, 2007—San Francisco, California
Filed July 16, 2007
Before: Cynthia Holcomb Hall and Diarmuid F. O’Scannlain,
Circuit Judges, and Irma E. Gonzalez,* Chief District Judge.
Opinion by Judge Gonzalez
*The Honorable Irma E. Gonzalez, United States Chief District Judge
for the Southern District of California, sitting by designation.
8481
R.B. v. NAPA VALLEY USD 8485
COUNSEL
George D. Crook and Henry Tovmassian, Newman Aaronson
Vanaman, Sherman Oaks, California, briefed the case, and
Mr. Crook argued the case for the appellants.
Sally Jensen Dutcher, General Counsel, and Scott N. Kivel,
Law Offices of Scott N. Kivel, Petaluma, California, argued
and briefed the case for appellees.
John E. Hayashida, Parker & Covert, Tustin, California, was
on the brief for amicus curiae California School Boards Asso-
ciation Education Legal Alliance.
OPINION
GONZALEZ, Chief District Judge:
R.B., a minor, by and through her Guardian Ad Litem,
F.B., and F.B. (“appellants”) appeal the district court’s entry
of summary judgment in favor of the Napa Valley Unified
School District (“appellee” or “District”). The district court,
in turn, upheld the decision by the California special educa-
tion hearing officer (“SEHO”) that R.B. is not entitled to spe-
cial education protection and services under the Individuals
8486 R.B. v. NAPA VALLEY USD
with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et
seq., and corresponding provisions of the California Educa-
tion Code. Because R.B. did not qualify for special education
services, appellants were ineligible for reimbursement of the
expenses they incurred in placing R.B. at Intermountain Chil-
dren’s Home and Services (“Intermountain”), a private school
in Helena, Montana.
Appellants challenge the SEHO’s decision on procedural
and substantive grounds. Appellants claim that R.B.’s individ-
ual education program (IEP) team should have included her
teacher or therapist from Intermountain and that this proce-
dural violation, in and of itself, denied R.B. a free appropriate
public education (FAPE). Appellants further claim that the
SEHO and district court erred in finding that R.B. did not
have a “serious emotional disturbance” under the criteria enu-
merated in 34 C.F.R. § 300.7(c)(4) (2003) and Cal. Code
Regs. tit. 5 § 3030(i). Appellants contend R.B. could not form
satisfactory relationships with peers and teachers, manifested
inappropriate behavior under normal circumstances, and was
pervasively depressed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
affirm.
I.
BACKGROUND
R.B. was born in 1991 to a mother who abused cocaine,
alcohol, and heroin. In infancy, R.B. demonstrated symptoms
of exposure to illegal drugs in utero (including irritability,
delayed visual maturation, and delayed motor skills). Both of
R.B.’s birth parents were incarcerated. F.B., a single parent
and schoolteacher, adopted R.B. at eighteen months of age.
F.B.’s mother assisted in caring for R.B.
R.B. was molested by her natural father when she was two.
Afterward, she required a year of play therapy because of her
R.B. v. NAPA VALLEY USD 8487
self-mutilation and inappropriate displays of affection. A psy-
chologist diagnosed R.B. with Attention Deficit Hyperactivity
Disorder (ADHD) and began prescribing medication when
she was three. Other diagnoses included Reactive Attachment
Disorder and Post Traumatic Stress Disorder.
R.B. was expelled from three preschool programs because
of her classroom misconduct. F.B. then placed R.B. with the
District, which determined R.B. was eligible for special edu-
cational services and developed an IEP program for her. R.B.
transitioned into a regular kindergarten class with resource
support, taught by Janis Sparks.
During R.B.’s first grade year at Donaldson Way Elemen-
tary School, the District concluded that R.B. no longer quali-
fied for special educational services. Instead, the District
found R.B. was a “qualified handicapped individual” under
Rehabilitation Act § 504 and developed a behavioral interven-
tion plan. F.B. acquiesced in these changes only after the Dis-
trict agreed to a neutral psychological evaluation. Dr. Emily
Jordan conducted the evaluation and confirmed the District’s
conclusion that R.B. was no longer a “child with a disability.”
R.B.’s elementary school history includes a series of dis-
turbing incidents. In second grade, R.B. banged a classmate’s
head against a computer monitor for refusing to give up the
computer at recess. R.B. was suspended in third grade for
throwing chairs and running off campus until law enforce-
ment restrained her. R.B. was suspended again in fourth grade
when she refused to take her ADHD medication, yelled at her
teacher, and was again restrained by law enforcement.
R.B.’s behavior reached an extreme point during the second
trimester of fifth grade. She was suspended twice in the span
of just over a month. First, R.B. twisted a child’s arm during
recess and said she hoped her music teacher would die. Then,
R.B. poked another student with a mechanical pencil while
refusing to turn in her work. At the time, R.B. was alternately
8488 R.B. v. NAPA VALLEY USD
refusing to take her ADHD medications and receiving occa-
sional double dosages from F.B. Working with R.B. and F.B.,
the District adopted a behavior management plan, which
largely remedied R.B.’s misconduct. Throughout elementary
school, R.B. excelled in her classes, scored high marks on
achievement tests, and frequently made the honor roll.
In the spring of 2002, F.B. met with an educational consul-
tant who referred R.B. to Dr. Paula Solomon for a psychologi-
cal evaluation. Without observing R.B. in the classroom, Dr.
Solomon recommended treatment in a residential placement
program. Therefore, on July 15, 2002, F.B. wrote to the Dis-
trict that R.B. had “reached a crises [sic] point.” F.B. said that
she would place R.B. in a residential treatment facility within
ten (10) days and expected the District to reimburse her for
the placement.
F.B. placed R.B. with Intermountain. Tina Morrison, the
Intermountain staff psychologist, was R.B.’s therapist. Morri-
son observed that R.B. engaged in controlling and physically
aggressive behavior toward staff and fellow students, to the
point that R.B. was “derailed cognitively” at times. R.B.’s
teacher at Intermountain was Kathy Brandt. R.B. took almost
twice as long as the average Intermountain student to transi-
tion into Brandt’s classroom. From November to March 2003,
Brandt observed R.B. intimidating other students almost
daily.
On August 6, 2002, F.B. requested an impartial due process
hearing, pursuant to 20 U.S.C. § 1415(f). Therefore, the Dis-
trict arranged for its psychologist, Denise Struven, to travel to
Intermountain to conduct an evaluation. Struven concluded
that R.B. did not qualify for special education benefits under
the IDEA.
On January 31, 2003, the following individuals met as part
of the District’s IEP team: Laura Miller, a special education
teacher and Director of Special Education for the district;
R.B. v. NAPA VALLEY USD 8489
Sparks, then a principal of Donaldson Way Elementary; Stru-
ven and Donna Poninski, District psychologists; Sally Dut-
cher, attorney for the District; Jane F. Reid, then-counsel for
appellants; and F.B. No one from Intermountain attended,
although Struven reported her observations of R.B. there. The
IEP team concluded R.B. was not eligible for special educa-
tion benefits.
F.B. appealed to the California State Education Agency,
pursuant to 20 U.S.C. § 1415(g). Hearing Officer Jessica Katz
of the California Special Education Hearing Office conducted
the hearing over six days in June and August 2003. The
SEHO found for the District, concluding that R.B. did not
meet the IDEA’s standard for a child with a “severe emotional
disturbance” for either the 2001-02 school year (R.B.’s fifth
grade year at Donaldson Way Elementary) or the 2002-03
school year (R.B.’s first year at Intermountain). The SEHO
also found that any procedural violation in the composition of
the IEP team did not result in a lost educational opportunity
for R.B.
On January 5, 2005, F.B. filed a complaint for violation of
the IDEA in the Northern District of California. The district
court granted the District’s motion for summary judgment,
and denied appellants’ cross-motion. After independently
reviewing the record and giving due deference to the SEHO,
the district court agreed that R.B. did not have a “serious
emotional disturbance” under the IDEA and that any proce-
dural violation did not result in a lost educational opportunity.
Appellants timely appealed on July 5, 2005.
This court has jurisdiction under 28 U.S.C. § 1291.
8490 R.B. v. NAPA VALLEY USD
II.
STANDARD OF REVIEW
The court reviews findings of fact for clear error, even if
those findings are based on the administrative record. Amanda
J. ex rel. Annette J. v. Clark County Sch. Dist., 267 F.3d 877,
887 (9th Cir. 2001). A finding of fact is clearly erroneous if
“ ‘the reviewing court is left with a definite and firm convic-
tion that a mistake has been committed.’ ” Id. (quoting Bur-
lington N., Inc. v. Weyerhaeuser Co., 719 F.2d 304, 307 (9th
Cir. 1983)). Mixed questions of fact and law are reviewed de
novo unless, as here, the question is primarily factual.1 Id.;
Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1310 (9th
Cir. 1987).
When a party challenges the outcome of an IDEA due pro-
cess hearing, the reviewing court receives the administrative
record, hears any additional evidence, and, “basing its deci-
sion on the preponderance of the evidence, shall grant such
relief as the court determines is appropriate.” 20 U.S.C.
§ 1415(i)(2)(B) (2003). Courts give “ ‘due weight’ ” to the
state administrative proceedings, Van Duyn ex rel. Van Duyn
v. Baker Sch. Dist. 5J, 481 F.3d 770, 775 (9th Cir. 2007)
(quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982)),
and, at a minimum, “ ‘must consider the findings carefully,’ ”
Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1474 (9th Cir.
1993) (quoting Gregory K., 811 F.2d at 1311). The court
gives particular deference where the hearing officer’s admin-
istrative findings are “thorough and careful.” Union Sch. Dist.
v. Smith, 15 F.3d 1519, 1524 (9th Cir. 1994).
1
Appellants argue for de novo review. However, as we recently stated
in another case concerning IDEA eligibility, “the fact-intensive nature of
a special education eligibility determination coupled with considerations
of judicial economy render a more deferential approach appropriate.”
Hood v. Encinitas Union Sch. Dist., 486 F.3d 1099, 1104 n.4 (9th Cir.
2007).
R.B. v. NAPA VALLEY USD 8491
III.
DISCUSSION
A. Procedural violation
The purpose of the IDEA is to provide special education
services for children with qualifying disabilities. 20 U.S.C.
§ 1400(d)(1)(A) (2003).2 In drafting the IDEA, “Congress
placed every bit as much emphasis upon compliance with pro-
cedures . . . as it did upon the measurement of the resulting
IEP against a substantive standard.” Bd. of Educ. of the Hen-
drick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 205-
06 (1982). Procedural compliance “would in most cases
assure much if not all of what Congress wished in the way of
substantive content in an IEP.” Id. at 206. Therefore, a
reviewing court first considers a school district’s procedural
compliance before reaching the IEP’s substance. Id.
[1] The IDEA requires “the provision of a free appropriate
public education [FAPE] to [each] child.” 20 U.S.C.
§ 1415(b). A child is denied a FAPE only when the proce-
dural violation “result[s] in the loss of educational opportunity
or seriously infringe[s] the parents’ opportunity to participate
in the IEP formation process.”3 W.G. v. Bd. of Trustees of Tar-
get Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 (9th Cir.
1992); accord Park v. Anaheim Union High Sch. Dist., 464
F.3d 1025, 1031 (9th Cir. 2006). Where a school district
improperly constitutes an IEP team, “IDEA procedural error
2
The IDEA was subsequently amended by the Individuals with Disabili-
ties Education Improvement Act of 2004, Pub. L. 108-446, 118 Stat. 2647,
which took effect on July 1, 2005. Here, we apply the statute and regula-
tions in effect at the time of the events in question. See Adams v. Oregon,
195 F.3d 1141, 1148 n.2 (9th Cir. 1999).
3
Appellants do not claim that the alleged procedural violations infringed
F.B.’s opportunity to participate in the IEP formation process. The sole
question is whether the procedural violations resulted in a loss of educa-
tional opportunity for R.B.
8492 R.B. v. NAPA VALLEY USD
may be held harmless[.]”4 M.L. v. Fed. Way Sch. Dist., 394
F.3d 634, 652 (9th Cir. 2005) (Gould, J., concurring). There-
fore, not all procedural violations deny the child a FAPE.
Park, 464 F.3d at 1033 n.3; Ford ex rel. Ford v. Long Beach
Unified Sch. Dist., 291 F.3d 1086, 1089 (9th Cir. 2002).
[2] One of the IDEA’s procedural requirements is the cre-
ation of an IEP team to determine a child’s eligibility for
IDEA benefits. Cf. 20 U.S.C. §§ 1414(b)(4)(A), c(4). Prior to
the 1997 amendments, the IEP team required the presence of
“the teacher.” 20 U.S.C. § 1401(a)(20) (1994). By contrast,
under the amended statute and implementing regulations, the
IEP team must include “at least one regular education teacher
of such child (if the child is, or may be, participating in the
regular education environment)” and “at least one special edu-
cation teacher, or where appropriate, at least one special edu-
cation provider of such child.” 20 U.S.C. § 1414(d)(1)(B)(ii)-
(iii); 34 C.F.R. § 300.344(a)(2)-(3); cf. Cal. Educ. Code
§ 56341(b)(2)-(3) (2001). Appellants claim the District’s IEP
team failed on both counts by including Sparks, who taught
R.B. in kindergarten six years before the IEP meeting, and by
not including Brandt, R.B.’s special education teacher at
Intermountain.
Whether Sparks’s participation on the IEP team was a pro-
cedural violation requires us to interpret the phrase “at least
4
Although each member of the M.L. panel wrote separately, that case
did not alter our standard for reviewing procedural errors in IDEA cases.
Two members of the panel analyzed whether the procedural violation
resulted in a lost educational opportunity. M.L., 394 F.3d at 652 (Gould,
J., concurring), 658 (Clifton, J., dissenting). As the narrower opinion join-
ing in the judgment for the M.L. appellants, Judge Gould’s concurrence is
the “controlling opinion”. See Center for Fair Public Policy v. Maricopa
County, 336 F.3d 1153, 1161 (9th Cir. 2003) (citing Marks v. United
States, 430 U.S. 188, 193 (1976)). Judge Gould’s concurrence merely clar-
ifies that, where a procedural violation does not result in a lost educational
opportunity for the student, the violation is “harmless error” because it
does not deny the student a FAPE. M.L., 394 F.3d at 651-52 (Gould, J.,
concurring).
R.B. v. NAPA VALLEY USD 8493
one regular education teacher of such child[.]” 20 U.S.C.
§ 1414(d)(1)(B)(ii); 34 C.F.R. § 300.344(a)(2). Although
appellants acknowledge the statutory amendments in a foot-
note, they seek to minimize the significance of those amend-
ments by relying on cases that interpreted the prior version of
the statute to require the participation of the student’s current
teacher on the IEP team. Shapiro ex rel. Shapiro v. Paradise
Valley Unified Sch. Dist. No. 69, 317 F.3d 1072, 1076 (9th
Cir. 2003), superseded by statute on other grounds, Individu-
als with Disabilities Education Act Amendments of 1997,
Pub. L. 105-17, § 614(d)(1)(B), 111 Stat. 37; Target Range,
960 F.2d at 1484. By using Shapiro and Target Range to
assert that our law requires the presence of a child’s private
school teacher at an IEP meeting, appellants are essentially
asking us to conclude that the statutory amendments had no
effect. M.L. did not resolve this issue because the IEP team
there included no regular education teacher, although dicta in
two of the opinions take a position at odds with appellants’ argu-
ment.5
[3] We conclude that, after the 1997 amendments, the
IDEA no longer requires the presence of the child’s current
regular education teacher on the IEP team. The phrase “at
least one regular education teacher of such child” gives a
school district more discretion in selecting the regular educa-
tion teacher than the phrase “the teacher.” As the Shapiro
court explained in its interpretation of the pre-1997 IDEA,
“the teacher” was Congress’s way of requiring more than sim-
ply “a teacher” on the IEP team. 317 F.3d at 1077. Allowing
“a teacher” to assume the role set aside for “the teacher” inter-
preted the statute too broadly. Id. This case is simply Shapiro
in reverse. If Congress had wanted the child’s current regular
5
See 394 F.3d at 649 (Alarcon, J.) (“Indeed, any regular education
teacher would have contributed his or her knowledge of the ability of a
disabled student to benefit from being placed in a regular classroom.”),
657 n.12 (Gould, J., concurring) (“The IDEA mandates that a regular
classroom teacher be a member of the IEP team.”)
8494 R.B. v. NAPA VALLEY USD
education teacher on the IEP team, Congress would have used
more specific language than “at least one regular education
teacher of such child.” Indeed, the phrase “at least one” con-
templates that the IEP team will include regular education
teachers other than the child’s current teacher. Requiring “the
current regular education teacher” to assume the role set aside
for “at least one regular education teacher” would interpret
the statute too narrowly.
[4] Like the Shapiro court, we find support for our con-
struction in the authorities of the Office of Special Education
Programs (“OSEP”). See 317 F.3d at 1077 (referencing a
footnote in an OSEP regulation to show that the child’s cur-
rent teacher must participate on the IEP team). OSEP’s Notice
of Interpretation explains, “[t]he regular education teacher
who serves as a member of a child’s IEP team should be a
teacher who is, or may be, responsible for implementing a
portion of the IEP, so that the teacher can participate in dis-
cussions about how best to teach the child.” 34 C.F.R. Pt. 300
App. A—Question 26 (1999). This interpretation imposes no
stringent requirement that the child’s current regular educa-
tion teacher attend the IEP meeting. An agency’s interpreta-
tion of its own regulations carries controlling weight unless
the interpretation is plainly erroneous or is inconsistent with
the regulations themselves. Stinson v. United States, 508 U.S.
36, 45 (1993); Nat’l Ass’n of Home Builders v. Norton, 340
F.3d 835, 843 (9th Cir. 2003). Because the agency’s failure to
require the participation of the current regular education
teacher is neither plainly erroneous nor inconsistent with the
regulation, we do not impose such a requirement.6
6
We also reject appellants’ argument that Sparks could not have been
a teacher “responsible for implementing a portion of the IEP” (if R.B. had
been entitled to an IEP). When the IEP team met, Sparks was principal of
Donaldson Way Elementary and, thus, was involved in the education of
all students in the school. Appellants fail to carry their burden of showing
that Sparks would have no responsibility for implementing the IEP by
merely pointing out that R.B. would soon enroll in middle school. See
Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 126 S. Ct. 528, 535-37
(2005) (party seeking IDEA relief bears burden of persuasion).
R.B. v. NAPA VALLEY USD 8495
[5] Whether the district’s failure to include Brandt7 on the
IEP team was a procedural violation requires us to interpret
the phrase “at least one special education teacher or, where
appropriate, at least one special education provider of such
child[.]” 20 U.S.C. § 1414(d)(1)(B)(iii) (2003); 34 C.F.R.
§ 300.344(a)(3) (2003). Like the companion provision on the
regular education teacher discussed supra, we interpret this
provision not to require the participation of the child’s current
special education teacher. Therefore, Brandt’s exclusion from
the IEP team was not a procedural violation per se.
[6] This is not the end of the argument, however, for noth-
ing in the record establishes that Miller, the special education
teacher on the IEP team, ever taught R.B. We conclude that
Miller’s participation did not satisfy the IDEA because we
interpret the statute and regulation to require a special educa-
tion teacher who has actually taught the student. Although this
requirement would be even clearer if the phrase “of such
child” also appeared immediately after “special education
teacher” and not merely after “special education provider,”8
we think the statute and regulation are clear enough as writ-
ten. Furthermore, the OSEP Notice of Interpretation states,
“[t]he requirements of [the regulation] can be met by either:
(1) a special education teacher of the child; or (2) another spe-
cial education provider of the child[.]” 34 C.F.R. Pt. 300 App.
A—Question 23. OSEP’s interpretation of the regulation to
require a special education teacher of the child is not plainly
7
Appellants also argue that Morrison should have been included on the
IEP team, presumably as a “special education provider of such child.” Our
analysis of whether the IEP team should have included Brandt applies
with equal force to Morrison.
8
Under California law, the IEP team must include “[a]t least one special
education teacher of the pupil, or, if appropriate, at least one special edu-
cation provider of the pupil.” Cal. Educ. Code § 56341(b)(3). Therefore,
even if we did not interpret the IDEA to require the participation of a spe-
cial education teacher who has actually taught the child, the composition
of R.B.’s IEP team would still have been procedural error under California
law, and we would still proceed to the harmless-error analysis infra.
8496 R.B. v. NAPA VALLEY USD
erroneous or inconsistent with the regulation itself. See Stin-
son, 508 U.S. at 45; Norton, 340 F.3d at 843. Although the
District did not have to include Brandt, it did not satisfy its
legal obligations by including Miller. Therefore, the District’s
failure to include a special education teacher or provider on
the IEP team who actually taught R.B. was a procedural viola-
tion of the IDEA. We now address the question of whether
that violation resulted in a loss of educational opportunity for
R.B., or was instead harmless error.
[7] We recognize that we have, more often than not, held
that an IDEA procedural violation denied the child a FAPE.
Compare M.L., 394 F.3d at 656 (Gould, J., concurring), Sha-
piro, 317 F.3d at 1079, Amanda J., 267 F.3d at 894, and Tar-
get Range, 960 F.2d at 1484-85 (all finding that the child was
denied a FAPE) with Park, 464 F.3d at 1033 n.3, and Ford,
291 F.3d at 1089 (both finding no denial of FAPE). All of
these cases except Ford, however, concern students who were
eligible under the IDEA and alleged that the procedural viola-
tions resulted in some defect in their IEP. In M.L., for exam-
ple, the IEP team improperly excluded a regular education
teacher and provided the student with an IEP that had few
opportunities for “mainstreaming,” i.e., interaction with non-
disabled students. 394 F.3d at 640 (Alarcon, J.). Judge
Gould’s concurrence emphasized the statutory preference for
mainstreaming and cited evidence from past school years to
show that the student could be placed in regular education
classrooms with non-disabled students. Id. at 656-57. The
procedural violation resulted in a lost educational opportunity,
and thus denied the student a FAPE, because a properly con-
stituted IEP team would likely have given greater consider-
ation to mainstreaming and provided the student an IEP with
more mainstreaming opportunities. Id. at 657.
In Shapiro, the failure to include the child’s current special
education teacher from her private school (under the pre-1997
IDEA) resulted in a loss of educational opportunity because
the private school was the only place where the child had
R.B. v. NAPA VALLEY USD 8497
received special education. 317 F.3d at 1077, 1079. Without
a representative from the private school at the IEP meeting,
the school district refused to continue placing the student with
the private school and instead offered placement in its own
program. Id. at 1074-75. The school district’s program was far
inferior because, at the time of the IEP meeting, the district
had not hired a teacher, the program might not continue past
the upcoming school year, and the student would be the first
and only enrollee. Id. at 1074-75. The loss of educational
opportunity was similar in Target Range, where, in the
absence of the regular education teacher from the child’s pri-
vate school, the school district proposed “a preexisting, prede-
termined” IEP and refused to consider alternatives. 960 F.2d
at 1484. See also Amanda J., 267 F.3d at 894 (failure to dis-
close student’s records, including documents that suggested
the possibility of autism, denied child a FAPE by preventing
parents’ full participation in the IEP meeting).
In these cases involving flaws in the IEP, the child has
already jumped through a significant hoop by establishing
IDEA eligibility. Once the child qualifies for special educa-
tion services, the district must then develop “[a]n IEP which
addresses the unique needs of the child[.]” Amanda J., 267
F.3d at 892. If the IEP team is improperly constituted, the
reviewing court is ill-situated to know what the IEP would
look like if the school district had included all the required
participants on the IEP team. Nor can the court substitute its
judgment for educational policymakers by determining what
kind of IEP will best suit the disabled child’s needs. A prop-
erly constituted IEP team is in the best position to develop an
IEP that suits the peculiar needs of the individual student. See
Rowley, 458 U.S. at 206 (explaining that procedural compli-
ance would almost always achieve what Congress intended
with respect to the substantive IEP provisions).
[8] Like this case, Ford presented a different, more prelimi-
nary question: whether the student qualified for IDEA bene-
fits in the first instance. In Ford, the district assessed the
8498 R.B. v. NAPA VALLEY USD
student and found that she was not IDEA-eligible. 291 F.3d
at 1087. The student claimed the assessment violated an
OSEP regulation because it did not include classroom obser-
vation by someone other than her current regular education
teacher. Id. at 1089. We held that the procedural violation did
not result in a lost educational opportunity for the student
because three of the student’s former teachers testified at the
administrative hearing. Id. at 1089. In effect, the hearing
cured the procedural violation by including those viewpoints
which should have been considered when the IEP team met.
[9] Similarly, in this case, the administrative hearing cured
the procedural error in the composition of the IEP team. If the
IEP team had included Brandt or Morrison, the District would
have satisfied the requirement that a special education teacher
or provider of the child be included. Although R.B.’s IEP
team lacked such a person, Brandt and Morrison both testified
at length during the hearing. To the extent that Brandt and
Morrison believed R.B. should be IDEA-eligible, they were
able to say why. The SEHO, district court, and now this court
all have the benefit of their testimony in determining whether
the District correctly concluded that R.B. was ineligible for
special education services. We then apply the law (of IDEA
eligibility) to the facts (including the new facts that Brandt
and Morrison presented for the first time to the SEHO). In so
doing, we apply the same eligibility criteria to all cases and
are, therefore, better situated to find an error harmless than in
the context of whether an IEP satisfies the unique needs of a
child with particular disabilities.
[10] A procedural violation does not constitute a denial of
a FAPE if the violation fails to “result[ ] in a loss of educa-
tional opportunity[.]” M.L., 394 F.3d at 651 (Gould, J., con-
curring); Target Range, 960 F.2d at 1485. A child ineligible
for IDEA opportunities in the first instance cannot lose those
opportunities merely because a procedural violation takes
place. Cf. Nack ex rel. Nack v. Orange City Sch. Dist., 454
F.3d 604, 612 (6th Cir. 2006) (procedural violation denies a
R.B. v. NAPA VALLEY USD 8499
FAPE “only if such violation causes substantive harm to the
child or his parents” (internal quotation marks and citation
omitted)). In other words, a procedural violation cannot qual-
ify an otherwise ineligible student for IDEA relief. Therefore,
the omission of a special education teacher or provider from
R.B.’s IEP team is harmless if R.B. is ineligible for IDEA
benefits. Because we affirm the district court’s acceptance of
the SEHO’s determination that R.B. does not qualify for
IDEA relief, we hold that the District’s procedural violation
in the composition of R.B.’s IEP team is harmless error.
B. Substantive eligibility
1. Deference to the SEHO decision
Before we reach the merits of R.B.’s IDEA eligibility, we
must address appellants’ arguments concerning the degree of
deference we should give to the SEHO’s underlying decision.
Appellants argue for no deference because they claim the
SEHO omitted or distorted certain pieces of evidence. The
District argues for the particular deference that we accord to
“thorough and careful” findings. See Smith, 15 F.3d at 1524.
We treat a hearing officer’s findings as “thorough and care-
ful” when the officer participates in the questioning of wit-
nesses and writes a decision “contain[ing] a complete factual
background as well as a discrete analysis supporting the ulti-
mate conclusions.” See Park, 464 F.3d at 1031. Those criteria
were satisfied here, as the SEHO asked follow-up questions
of many witnesses, included several pages of factual back-
ground in the decision, and discretely analyzed all the issues
presented for each of the two academic years in question. To
this extent, the SEHO’s findings deserve particular deference.
Therefore, we can summarily dismiss most of appellants’
objections as impermissible attempts to second-guess the
SEHO’s characterization and weighing of the evidence. We
find no reason for according less deference to the SEHO’s
8500 R.B. v. NAPA VALLEY USD
decision because she described R.B.’s misconduct as “episod-
ic” or labeled the transition to Intermountain a “difficult
adjustment period.” Nor do we quibble with the SEHO’s cita-
tion to R.B.’s 2002 achievement test scores as evidence that
R.B. performed “at or above grade level” (even though R.B.’s
2001 achievement test scores were even higher) or the failure
to compare R.B.’s grades at Donaldson Way Elementary to
her grades at Intermountain9. We reject appellants’ assertion
that the SEHO distorted the testimony of Joanna Gardner, the
mother of one of R.B.’s friends: the SEHO’s conclusions that
R.B. spent time with and participated in extracurricular activi-
ties with Gardner’s daughter were properly drawn from Gard-
ner’s testimony. We also refuse to question the SEHO’s
reliance on the Struven report, which included observations of
R.B. in the classroom, rather than the Solomon report, which
did not. The SEHO’s weighing of the evidence was consistent
with the requirement that the IEP team review “[c]urrent
classroom-based assessments and observations” and
“[o]bservations by teachers and related service providers[.]”
34 C.F.R. § 300.533(a)(ii)-(iii) (2003).
[11] We are concerned, however, by the SEHO’s failure to
make any reference in her decision to the testimony of Brandt
or Morrison. The absence of discussion is particularly disturb-
ing because the omission of R.B.’s special education teacher/
provider from the IEP team was the procedural violation in
this case. The testimony of Brandt and Morrison at the due
process hearing helped cure the procedural violation, but the
SEHO decision’s failure to cite any of their testimony con-
veys the impression that the SEHO did not thoroughly and
carefully consider their viewpoints. The district court’s deci-
9
The SEHO supported her conclusion that R.B. was performing at grade
level academically with the results of an achievement test that Struven
administered at Intermountain. The SEHO’s reliance on achievement test
scores rather than grades to measure R.B.’s academic progress was a rea-
sonable choice because of the very different grading systems used by Don-
aldson Way and Intermountain.
R.B. v. NAPA VALLEY USD 8501
sion is better: to support its conclusion that R.B. did not meet
the criteria for IDEA eligibility at Intermountain, it cites Mor-
rison’s testimony that R.B.’s behavior eventually improved
during her year there. Again, however, the district court did
not discuss Brandt’s testimony, other than mentioning in pass-
ing that plaintiffs relied on it.
[12] Therefore, in our review of the SEHO’s decision, we
accord particular deference to the SEHO’s “thorough and
careful” findings, except to the extent they do not discuss
Brandt’s and Morrison’s testimony. In other words, we accord
deference to the SEHO’s finding that R.B. was ineligible for
IDEA relief in both school years, although we independently
review the testimony in the record that the SEHO failed to
consider. Cf. Katherine G. ex rel. Cynthia G. v. Kentfield Sch.
Dist., 261 F. Supp. 2d 1159, 1175 (N.D. Cal. 2003) (deferring
to the hearing officer’s “well-reasoned and well-supported”
findings and conclusions while independently reviewing the
testimony that the hearing officer failed to consider). Because
IDEA eligibility determinations are fact-intensive, we review
for clear error the district court’s acceptance of the SEHO’s
decision. See Hood, 486 F.3d at 1104. In applying this stan-
dard of review, we are mindful that the district court dis-
cussed some of the testimony that the SEHO did not.
2. Eligibility criteria
An overarching purpose of the IDEA is to provide a FAPE
to “children with disabilities.” 20 U.S.C. § 1400(d)(1)(A); cf.
§ 1412(a)(1)(A) (providing FAPE to all children with disabili-
ties is a condition for federal IDEA funding). The term “child
with a disability” includes, inter alia, a child with a “serious
emotional disturbance” “who, by reason thereof, needs special
education and related services.” 20 U.S.C. § 1401(3)(A).
Under federal and California regulations, a “serious emotional
disturbance” requires at least one of the following characteris-
tics:
8502 R.B. v. NAPA VALLEY USD
(A) An inability to learn that cannot be explained by
intellectual, sensory, or health factors.
(B) An inability to build or maintain satisfactory
interpersonal relationships with peers and teachers.
(C) Inappropriate types of behavior or feelings under
normal circumstances.
(D) A general pervasive mood of unhappiness or
depression.
(E) A tendency to develop physical symptoms or
fears associated with personal or school problems.
34 C.F.R. § 300.7(c)(4) (2003); cf. Cal. Code Regs. tit. 5
§ 3030(i). The child must “exhibit[ ]” the characteristic(s) “[1]
over a long period of time and [2] to a marked degree [3] that
adversely affects a child’s educational performance.” 34
C.F.R. § 300.7(c)(4) (2003).
Each state determines the meaning of the language in the
federal regulation. J.D. ex rel. J.D. v. Pawlet Sch. Dist., 224
F.3d 60, 66 (2d Cir. 2000); Mr. I v. Me. Sch. Admin. Dist. 55,
416 F. Supp. 2d 147, 157 (D. Me. 2006). Rather than promul-
gate additional regulations, California relies on case-by-case
administrative adjudication of IDEA eligibility. Decisions by
the California State Educational Agency (“CSEA”) are per-
suasive authority for resolving the issues here—namely,
appellants’ claims that R.B. was eligible for IDEA benefits
because she could not build or maintain interpersonal relation-
ships, behaved inappropriately under normal circumstances,
and was pervasively depressed.
a. Interpersonal relationships
Relying on Dr. Solomon’s conclusions, appellants claim
the SEHO and the district court disregarded “overwhelming”
R.B. v. NAPA VALLEY USD 8503
evidence of R.B.’s inability to build or maintain relationships.
We disagree. The SEHO openly acknowledged the conflicting
evidence regarding whether R.B. could maintain satisfactory
relationships and cited testimony on both sides. The SEHO
found that R.B. could maintain relationships and firmly
grounded that conclusion in the record. Gardner testified
about R.B.’s friendship with her daughter, and R.B.’s fifth-
grade teacher and principal both testified that R.B. had
friends.
The SEHO also found that R.B. developed satisfactory rela-
tionships with school personnel. This finding is important
because the regulation considers relationships “with peers and
teachers.” 34 C.F.R. § 300.7(c)(4)(B) (2003); Cal. Code
Regs. tit. 5 § 3030(i)(2) (emphasis added); cf. Fresno Unified
Sch. Dist., 39 IDELR 28, at 7 (CA SEA Jan. 16, 2003)
(explaining that the regulation sets “a high standard to meet
as it requires [the student’s] difficulties to be both with peers
and teachers” (emphasis added)). The record fully supports
the SEHO’s conclusion. For example, R.B. had such a good
relationship with her third grade teacher that, as a fifth grader,
R.B. occasionally visited the third grade classroom to tutor
students in reading. R.B.’s fifth-grade teacher attended R.B.’s
year-end music recital. The principal testified that she had a
“great relationship” with R.B., who would read to the princi-
pal in her office and talk with her on the playground about
future plans. Although Solomon opined that R.B. could not
form satisfactory relationships with teachers, the SEHO rea-
sonably discounted the weight of that testimony because Solo-
mon did not observe R.B. at school or speak to school
personnel. CSEA decisions regularly give little weight to the
opinions of experts who do not consult school personnel. Ven-
tura Unified Sch. Dist., 102 LRP 7625, at 17 (CA SEA Nov.
21, 2000); Williams Unified Sch. Dist. & Colusa County
Office of Ed., 26 IDELR 1198, at 10 (CA SEA Aug. 21,
1997).
The testimony of Brandt and Morrison confirms that R.B.
became able to form friendships with peers and teachers at
8504 R.B. v. NAPA VALLEY USD
Intermountain. Brandt testified that R.B. overcame initial hos-
tility toward classmates and developed several peer friend-
ships. Morrison likewise testified that R.B. began to describe
one peer as a “best friend” and developed strong relationships
with adult counselors.
[13] Deferring to the SEHO’s findings, a preponderance of
the evidence shows that R.B. was able to build and maintain
satisfactory relationships with peers and teachers during her
fifth grade year at Donaldson Way and her first year at Inter-
mountain. Therefore, R.B. was not eligible for IDEA relief
under this prong.
b. Inappropriate behavior
The inappropriateness of R.B.’s behavior during the 2001-
02 and 2002-03 school years is manifest. As a fifth grader,
R.B. was sent to the principal’s office for, e.g., pinching and
twisting classmates’ arms on the playground on multiple
occasions, tearing up classroom materials, verbalizing her
hope that her music teacher would die, poking a classmate
with a pencil because he would not help her cheat, and using
the f-word. Morrison testified that R.B. physically attacked
counselors at Intermountain and damaged property at least
daily. R.B. would also attack younger children and throw
food. R.B. admitted that she deliberately included grammati-
cal errors in her written work because she enjoyed making life
difficult for Brandt. When R.B. became a danger to herself or
to others, Brandt would send R.B. to “day coverage”: this
happened weekly during R.B.’s first four months in the class-
room.
Nonetheless, the SEHO questioned whether R.B.’s inappro-
priate behavior took place under the requisite “normal circum-
stances” because R.B. was not regularly taking her ADHD
medication for most of the fifth grade year. (SEHO Decision,
at 9.) We similarly question whether R.B.’s first months at
R.B. v. NAPA VALLEY USD 8505
Intermountain were “normal circumstances” because R.B.
was adapting to life at a new school away from her family.
Appellants contend the SEHO and district court were blind
to R.B.’s long history of behavioral problems. The miscon-
duct that prompted the behavioral support plan during the
fifth grade year was allegedly just a continuation of conduct
that began in previous years and persisted through the remain-
der of R.B’s fifth grade year and at Intermountain. Appellants
make much of the behavioral support plan’s passing reference
to R.B.’s “habitual history of this type of resistant behavior,”
concluding that this language alone establishes the District’s
knowledge that R.B.’s inappropriate behavior has continued
over a long period of time.
Even if these circumstances were “normal” within the
meaning of the regulation, a preponderance of the evidence
establishes that R.B.’s inappropriate behavior was not to a
marked degree over a long period of time. Appellants miscon-
strue the import of the behavioral support plan that Donaldson
Way Elementary implemented during the second trimester of
R.B.’s fifth grade year. The whole point of the plan was that
R.B.’s “habitual history” of “isolated incidents” of miscon-
duct reached acute levels during that trimester. Once the Dis-
trict implemented the support plan, R.B.’s behavior improved.
In other words, while R.B. engaged in inappropriate behavior
over several years of school, that behavior was “to a marked
degree” only during one trimester of one grade. We accord
particular deference to the SEHO’s thorough and careful find-
ing that R.B.’s behavior was not “pervasive and ongoing,”
and conclude that R.B. cannot establish IDEA eligibility on
the basis of inappropriate behavior during her fifth-grade
year.
For the same reasons, R.B. likewise cannot establish IDEA
eligibility based on her inappropriate behavior at Intermoun-
tain. In a passage cited by the district court, Morrison testified
that R.B. began to develop sympathy for others and react to
8506 R.B. v. NAPA VALLEY USD
anxious situations without becoming violent. Similarly,
Brandt saw “a big improvement” in R.B.’s classroom attitude
by April 2003 and began to allow R.B. to participate in class
field trips.
R.B.’s inappropriate behavior further does not amount to a
“severe emotional disturbance” because it did not adversely
affect her educational performance. California primarily
gauges educational performance through academic measures.
See Fresno Unified Sch. Dist., 39 IDELR 28, at 3, 5, 13 (CA
SEA Jan. 16, 2003); Ventura Unified Sch. Dist., 102 LRP
7625, at 23-25 (CA SEA Nov. 21, 2000). Here, all grades on
R.B.’s fifth-grade report card were “4” or “5,” indicating
work at or above grade level. During the year at Intermoun-
tain, a majority of her grades were “A” or “B,” with only one
“D.” R.B.’s achievement test scores were similarly average or
better. Even the 2002 spelling score on which appellants so
heavily rely placed R.B. in the 57th percentile, above more
than half of her peers. A preponderance of the evidence shows
that any of R.B.’s exhibited characteristics did not adversely
affect her educational performance.
Appellants claim the SEHO erred by using R.B.’s grades as
a “litmus test” instead of considering that R.B.’s educational
performance was below her ability. They rely on out-of-
circuit cases requiring analysis of the individual student’s
“potential” to determine IDEA eligibility. Our rule, however,
is that the IDEA does not guarantee “the absolutely best or
‘potential-maximizing’ education for the individual child.”
Gregory K., 811 F.2d at 1314 (quoting Rowley, 458 U.S. at
197 n.21); accord Drew P. v. Clarke County Sch. Dist., 877
F.2d 927, 930 (11th Cir. 1989). While the Supreme Court has
cautioned that merely advancing from grade to grade does not
satisfy the IDEA, Rowley, 458 U.S. at 203 n.25, it also limited
the IDEA’s guarantees to “the basic floor of opportunity”, id.
at 201.
Appellants cite the District’s development of Rehabilitation
Act § 504 plans and behavioral support plans as further evi-
R.B. v. NAPA VALLEY USD 8507
dence that R.B.’s behavioral problems adversely affected her
educational performance. The Rehabilitation Act is, however,
a separate statutory scheme with different qualifying criteria,
and R.B.’s satisfaction of those criteria do not automatically
make her eligible under the IDEA. Muller ex rel. Muller v.
Comm. on Special Ed. of the East Islip Union Free Sch. Dist.,
145 F.3d 95, 99 n.2 (2d Cir. 1998); Yankton Sch. Dist. v.
Schramm, 93 F.3d 1369, 1376 (8th Cir. 1996). Furthermore,
California school districts commonly turn to behavioral sup-
port plans as alternative remedies for students who do not sat-
isfy the IDEA’s criteria for a “severe emotional disturbance.”
See Ventura Unified Sch. Dist., 102 LRP 7625, at 5, 10 (CA
SEA Nov. 21, 2000).
[14] In summary, by a preponderance of the evidence and
with deference to the SEHO’s thorough and careful findings,
we conclude that R.B.’s inappropriate behavior was not to a
marked degree over a long period of time and did not
adversely affect her educational performance. Therefore, R.B.
was not eligible for IDEA relief under this prong.
c. Pervasive unhappiness or depression
Acknowledging a long history of depression diagnoses, the
SEHO nonetheless concluded that R.B. was not depressed
during her fifth grade year because school personnel testified
that R.B. generally seemed happy. The SEHO also relied on
the District’s failure to receive any documentation of depres-
sion diagnosis (including the Solomon report) until R.B. fin-
ished the fifth grade. However, licensed professionals who
examined R.B. during the 2001-03 time frame—including
Solomon, Morrison, and Struven—all diagnosed R.B. with
depression.
Even if we accepted the opinion of the licensed profession-
als and rejected the SEHO’s finding that R.B. was not
depressed during the 2001-02 and 2002-03 school years,
appellants would still fail to establish IDEA eligibility
8508 R.B. v. NAPA VALLEY USD
because they could not prove that R.B.’s depression was “to
a marked degree.” The Struven report, which the SEHO found
most persuasive, concluded that R.B. only had mild depres-
sion below the level required to establish a “severe emotional
disturbance.” The SEHO heard the testimony of all the
experts and was familiar with the various methodologies
employed in each report. Therefore, we defer to the SEHO’s
thorough and careful analysis of the expert reports and accept
the conclusion that R.B.’s depression was not to a marked
degree.
[15] Finally, for all the reasons stated in Part III(B)(2)(b)
of this opinion, R.B.’s depression did not adversely affect her
educational performance. Therefore, R.B. was not eligible for
IDEA relief under this prong.
IV.
CONCLUSION
[16] The District violated the procedural requirements of
the IDEA by not including a special education teacher or pro-
vider of the child on the IEP team. After reviewing the record
and giving proper deference to the SEHO’s thorough and
careful findings, we hold that R.B. did not qualify as a “child
with a disability” because she did not meet any of the criteria
for a “severe emotional disturbance.” Because R.B. is sub-
stantively ineligible for IDEA relief, we hold that the proce-
dural error in the composition of her IEP team was harmless.
AFFIRMED.