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E. M., A Minor, By and Through His Parents, E.M. and E.M v. Pajaro Valley Unified School District Office of Administrative Hearings

July 14, 2011


Appeal from the United States District Court for the Northern District of California Jeremy D. Fogel, District Judge, Presiding D.C. No. 5:06-cv-04694-JF

The opinion of the court was delivered by: Noonan, Circuit Judge:



Argued and Submitted November 5, 2010-San Francisco, California

Before: John T. Noonan, Richard A. Paez, and Carlos T. Bea, Circuit Judges.

Opinion by Judge Noonan;

Dissent by Judge Bea


E.M. is a bilingual student in Pajaro Valley Unified School District ("PVUSD"), California. He has performed poorly in school, although by most measures, he is of average to above-average intellectual ability. E.M.'s parents brought this action to challenge PVUSD's determination that E.M. did not qualify for special education under the Individuals with Disabilities Education Act ("IDEA"). The Special Education Division of the California Office of Administrative Hearings ("OAH") upheld PVUSD's assessment. The district court, in turn, upheld the OAH's decision.

This appeal comes to us after careful consideration by an able district judge. We disagree with his assessment only to the extent that we find one claim not addressed and one report not measured for its relevance. We affirm the judgment of the district court in part, reverse in part, and remand for further proceedings.


At all relevant times, E.M. was a student in PVUSD. In the third and fourth grades, he struggled in school. His teachers identified attention and homework completion as problem areas. They used interventions designed to help him succeed in a regular educational program. They had limited success. E.M. was designated as "at risk for retention." However, his teachers did not perceive him as a candidate for special education.

The summer before E.M. entered fifth grade, his parents brought him to a psychologist, Roslyn Wright, to have him evaluated for a learning disability. Dr. Wright assessed E.M. using a test of intellectual ability, the Wechsler Intelligence Scale for Children, Third Edition ("WISC-III"), and a battery of achievement tests, the Woodcock-Johnson Tests of Achievement-III ("WJ-III"). Based on the test results, Dr. Wright diagnosed E.M. with a learning disability.

E.M.'s parents then requested PVUSD to assess their son for eligibility for special education and related services under IDEA. PVUSD's psychologist administered to E.M. the Kaufman Assessment Battery for Children ("K-ABC"), a comprehensive intelligence test, and the WJ-III achievement tests. Based on this assessment, PVUSD determined that E.M. was not eligible for special education.

At the request of E.M.'s parents, PVUSD reassessed E.M. in May of his fifth-grade year and reached essentially the same result as it did in its first assessment. PVUSD performed a third assessment in June, resulting in recommendations for additional interventions in the general education classroom. At the end of fifth grade, PVUSD again designated E.M. as at risk for retention.

In November 2005, in the first half of E.M.'s sixth-grade year, E.M.'s parents obtained an auditory evaluation by Dr. Ruth Kaspar. She concluded that E.M. had an auditory processing disorder.


E.M.'s parents disagreed with PVUSD's assessments and, on December 5, 2005, E.M. filed a complaint with the Special Education Division of the OAH. The OAH held a six-day due process hearing and issued a decision in favor of PVUSD on all issues. E.M. appealed the decision to the district court, where the parties filed cross-motions for summary judgment.

In the district court, E.M. moved to supplement the record with evidence obtained after the conclusion of the OAH hearing. This evidence included a report by Cheryl Jacques, a clinical psychologist, who reviewed E.M.'s records and conducted a battery of tests. Dr. Jacques tested E.M.'s intelligence using the WISC-IV, an updated version of the WISCIII test that Dr. Wright used. Based on her assessment and review of the records relating to E.M., Dr. Jacques concluded that E.M. had a "specific learning disability" as defined under IDEA. See 20 U.S.C. § 1401(30). She also reviewed the data from prior assessments and concluded that it was "puzzling" that PVUSD did not find that E.M. qualified for special education in 2004. The district court denied E.M.'s request to supplement the record with Dr. Jacques's report.

The district court initially denied PVUSD's motion for summary judgment and remanded E.M.'s case to the OAH for further written analysis as to some of the prior conclusions of the administrative law judge ("ALJ"). In the meantime, PVUSD re-assessed E.M. and, on February 22, 2008, found him eligible for special education as of that date. PVUSD did not admit that it ...

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